
    John P. Covit, Respondent, v. Tucker Electrical Construction Company, Appellant.
    (Supreme Court, Appellate Term,
    January, 1910.)
    Master and servant — Master’s liability for injuries to servant — Tools, machinery, appliances and places to work — Improper use of tools, appliances or places furnished by master.
    Where a workman engaged in putting up electrical appliances in the roof of a tunnel, instead of procuring a ladder, takes a plank, at the suggestion of the foreman, and places °one end under an iron flange and on the top of a pipe used for a light pressure air line, and uses the plank which projects into the tunnel as a place to work; and the pipe, not being sufficiently secured, rolls from its place, letting the plank fall and precipitating the workman to the bottom of the tunnel and injuring him, he cannot recover of the master in the absence of proof of want of reasonable care in selecting the foreman.
    In such a case no want of care appears in furnishing a safe place to work and safe and suitable appliances to work with, as the pipe which gave way was not intended as a support for planks to stand upon and became dangerous only when put to a use for which it was not intended.
    Appeal by the defendant from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, third district, entered upon the verdict of a jury in favor of the plaintiff.
    Frank V. Johnson (Edward J. Walsh, of counsel), for appellant.
    Kilroe & Swarts, for respondent.
   Giegerich, J.

The action is at common law, for negligence.

The plaintiff was employed as an electrician by the defendant, upon work in the northbound tube of the McAdoo tunnel or subway of the Hudson and Manhattan Railroad Company, running from the Erie railroad station in Jersey City to the Lackawanna railroad station in Hoboken, H. J. At the time of the accident which gave rise to this action he had been so employed for about two months. On July 21, 1909, he reported for work to the foreman in charge of one of the sections of the tunnel, part of whose duty it was to assign the workmen to their work for the day. The plaintiff was'directed by the foreman to go to caisson Ho. 3 and there to occupy himself in putting up certain receptacles in the top or roof of the tunnel. The roof was about twelve feet above the railroad tracks which had been laid through the tunnel.

The plaintiff testified that he asked the foreman for a ladder for use in the work indicated, and that the foreman said he did not know whether there was one around or not, but to go ahead and use a piece of plank. The plaintiff also testified that he looked around for a ladder, but could not find any, and that he looked further as he walked along in the tube, to the place to which he had been detailed, but could not find any that was not in use.

The plaintiff accordingly procured a plank and, placing one end underneath a flange in one of the metal plates forming the side of the tube or tunnel, rested the plank upon an iron pipe which lay upon concrete blocks about four inches square and which in turn rested upon a ledge running along the side of the tunnel. This ledge was about five feet high.

The plank being placed over the iron pipe, and its end under the flange, projected out toward the center of the tunnel and enabled the plaintiff to walk out upon it and to reach the top of the tube at its center. The plaintiff admitted that this was a contrivance frequently used by the men at work in the tunnel for the sake of its convenience, but stated that he had never made use of it before.

The plaintiff, after putting the plank in place, stood upon it and tested it to see that it would bear his weight and then commenced working from that position. Shortly afterward the iron pipe on which the plank rested rolled from its place and the plank fell, throwing the plaintiff to the ground and causing the injuries of which he complains. The iron pipe was usually fastened to the side of the tube by means of an iron strap, and the plaintiff testified that it would have been impossible for the pipe to have slipped under the use that was made of it if it had been properly fastened. The pipe was used for a light pressure air line, and the defendant had nothing to do with its construction or maintenance. It was covered with rubbish at the place where the plaintiff rested his plank upon it, and the plaintiff did not examine it or remove the rubbish except so far as necessary to put the plank in place. The foreman testified that he never examined it to see that it was safe.

There was also testimony from which the jury might properly have found that the plank was placed in position by the plaintiff in the manner which had been previously indicated to him by the foreman.

Motions to dismiss the complaint were made at the close of the plaintiff’s case and at the close of the whole case; and, the jury having found for the plaintiff, the defendant moved for a new trial upon the ground that the verdict was contrary to the evidence and against the weight of evidence. No exceptions having been taken to the charge to the jury, the question presented on this appeal is whether the motion for a new trial was properly denied.

The jury having found for the plaintiff under a' charge to which no exception was taken, their verdict ought not to be disturbed unless there is either no evidence to sustain it or it is clearly against the weight of the evidence.

If the defendant corporation is liable at all, it must be because it is in some way chargeable with negligence. In what then does its negligence consist? The plaintiff says that the defendant was under the obligation to use reason- ■ able care in providing a safe place for its employees to work and in furnishing them with safe and adequate appliances for that work, and this is undoubtedly true and was an obligation which the defendant could not escape by any delegation of authority to a vice-principal. In the present case, however, no claim is made that the tube or tunnel in which the work was done was an unsafe place. The only unsafe place of which complaint is made was the plank upon which the plaintiff was at the time of his fall. This was a place which the plaintiff had constructed for himself and as to which the defendant could hardly owe him the duty of care which it undoubtedly owed as to the premises themselves. It cannot affect the question that the platform was constructed by the plaintiff under the advice and in the manner suggested by the foreman. There is no suggestion that the foreman was not a competent servant; and, if so, the defendant was not liable either for his negligence or for his errors of judgment in a mere detail of the work in which he was engaged with the plaintiff. Russell v. Lehigh Valley R. R. Co., 188 N. Y. 344. There was thus no evidence that the defendant had been negligent in regard to furnishing a place for the plaintiff to work.

Was there any evidence, then, that the defendant had failed in its duty to use reasonable care in furnishing safe and adequate appliances for the plaintiff to- work with ? There was no fault found with any of the appliances actually furnished. The accident did not happen through any defect in the ladders supplied by the defendant for use in the work; and the plank furnished the plaintiff was, as he testified, a good plank and practically new. The negli- ' gence of the defendant, therefore, if -it can be predicated upon anything in the record, must be based either upon the , theory that the iron pipe, upon which the plank rested, was not properly fastened to the wall, or upon the theory that the defendant had not furnished adequate appliances, inasmuch as it had not furnished enough ladders for the work required to he done.

The iron pipe was neither constructed by nor under the control of the defendant and was constructed for use as a pipe to conduct air under a light pressure. So far as appears, it was perfectly safe for the use for which it was intended, and the accident did not occur through any normal use of the pipe. So far as it was a part of the premises it added no element of danger and did not make the premises m any way unsafe. If the accident had occurred through a defect in the pipe or in its attachment to the wall while the pipe was in normal use, it may be that the defendant would have been liable for a failure to cause it and its fastenings to be inspected; but I do not think that the defendant was under any duty to cause the pipe to be examined for the purpose of ascertaining its fitness for a use for which it was obviously never intended, and which subjected it to a strong pressure and strain additional to that which its normal use would impose.

Concerning the supposed failure of the defendant to furnish ladders, it is to be noted, in the first place, that' the evidence plainly showed that the plaintiff made no very serious effort to procure a ladder. He testified that he asked the foreman “ How about a ladder ? ” and that the foreman replied that “ he didn’t know if there was any around or not, but to go ahead up there and use a piece of plank.” He further says: “ I looked around for a ladder and could not find any. After I got outside I looked up farther and couldn’t find any, and I had to use a plank.” The following further testimony was also given by the plaintiff: Q. Did you look for ladders? A. I certainly did. Q. There were none other that were not in use? A. I couldn’t find any that were not in use. Q. Did you attempt to find any in the tunnel? A. I certainly did. As I walked along in the tube I certainly looked. Q. Was there any other place that you were accustomed to apply for ladders ? A. Ho, it was not, not without an order. Q. Did you receive an order for a ladder from Hr.' Whitaker at that time? A. Ho, sir; I received no order. Q. Had there at any time previously on the job been a large quantity of ladders ?• A. Yes, off and on there were ladders, and the first thing you know they would be lost or disappear or break, altogether scattered. Q. Do you know of any particular time when the ladders were removed from the job'( A. Yes, just a couple of days before that laborers had cleaned out the tube. Q. You know that just before that ladders had been removed from there? A.,Yes, there certainly was.”

From all this, I think it quite clearly appears that the plaintiff adopted the foreman’s suggestion that he use a plank instead of a ladder without by any means exhausting methods available to him of procuring a ladder. There were admittedly ladders there, although the plaintiff says they were in use at the time; and he did not attempt to procure the order which he referred to in his testimony. It surely cannot be held that the duty of the defendant to use reasonable care in furnishing adequate and proper appliances for the work can be so extended as to require it to have so many ladders on the premises that at all times one could be found, not in use, by any workman walking through the tunnel on his way to the place to which he had been assigned to work; and, as said by Judge Gray in Russell v. Lehigh Valley R, R. Co., supra (p.‘ 318) : “ A jury’s speculation upon the situation cannot be allowed to affect the question of the master’s liability.”

In all this, I have taken no account of the testimony for the defense, but have sought to give the plaintiff the benefit of all inferences which the jury could properly be allowed to draw from the testimony of the plaintiff himself, disregarding all conflicting testimony. I am forced to the conclusion that there is no evidence in the case sufficient to sustain a finding that the defendant was negligent and that, as the verdict of the jury necessarily implies that finding, it ought not to be permitted to stand.

Counsel for the respondent say, in their brief: “ The plaintiff had a right to rely upon the defendant having performed its duty; he had a right to assume that, when the defendant ordered him to adjust a plank in a certain way at a specific place, that place was safe, suitable and proper. We respectfully point out to the court that the specific place and the specific way of adjusting the plank were selected by the master and the servant, throughout the whole time immediately preceding the accident, simply carried out the orders of his superior.”

This argument shows quite clearly the essential weakness of the plaintiff’s case. The plaintiff is not suing the foreman for any negligence on his part, but he is suing the corporation; and he must show by sufficient evidence that the corporation failed in some duty it owed to the plaintiff. The defendant owed the duty of using reasonable care to furnish a safe place and safe and suitable appliances, and it also owed the same care in selecting its other servants. Having selected a proper and competent foreman, however, it could leave the details of the work to the judgment of the foreman; and for his errors of judgment, or even for his negligence, the defendant was not liable. Russell v. Lehigh Valley R. R. Co., swpra,; Vogel v. American Bridge Co., 180 N. Y. 373. In the present case, the defendant neither ordered the plaintiff to adjust the plank in a certain way nor selected the specific place in which it was to be adjusted. These were mere "details of the work, and for the error or neglect of the foreman in their performance the defendant could not be held accountable.

The case of Pluckham v. American Bridge Co., 104 App. Div. 404, affd. 186 N. Y. 561, has no applicátion, because there the master failed in his initial obligation to furnish a safe and suitable appliance, which as above shown is not the case here.

The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Dayton and Lehman, JJ., concur.

Judgment reversed and new trial ordered.  