
    Cornelius Bagley, Respondent, v. The Consolidated Gas Co., Appellant.
    (New York Common Pleas—General Term,
    June, 1895.)
    A new trial must be granted when the court misdirects the jury, and such misdirection may have determined the verdict.
    Appeal from judgment on verdict and from order denying new trial.
    The opinion states the case.
    
      Demiel Lord, for appellant.
    
      Lorenzo Semple, for respondent.
   Pryor, J.

In an action for negligent injury to the person these appear to be the circumstances of the accident: The plaintiff, with other servants of the defendant, was engaged under the direction of a foreman in hoisting a heavy tank over the wall of defendant’s building. A scaffold against the wall obstructing the operation was partially removed; but a fragment remained with planks on its top. . Through the omission of the defendant to detach those planks, and through the negligence of the foreman in allowing an unsteady and irregular movement of the tank in the process of elevation, it dislodged the planks and precipitated them upon the plaintiff while standing under them in the act of helping to hoist the tank.

The only issue in controversy at the trial was as to the negligence of the defendant. On the conclusion of the plaintiff’s case the defendant moved for a dismissal of the complaint; and the exception to the denial of that motion presents the question whether the case should have gone to the jury.

The immediate cause of plaintiff’s injury was the fall of the planks upon his head. The cause of that fall was the irregular movement of the tank in the act of hoisting; and the cause of that irregular movement was the omission of the foreman to block or plank the tank. The .foreman was the fellow-servant of the plaintiff (Connolly v. Maurer, 6 Misc. Rep. 98 ; Geoghegan v. Atlas S. S. Co., 3 id. 224; affirmed in the Court of Appeals); and of course the defendant is not responsible for the negligent hoisting of the tank. Hogan v. Smith, 125 N. Y. 774.

But the planks would not have fallen on the plaintiff had they been removed. To assist in lifting the tank he was obliged to stand under the planks, and their fall is proof that their presence was of peril to him. The plaintiff was not afforded a safe place for the work required of him.

It is the duty of the master to be careful in providing a safe place of work for the servant, and if he delegate that duty to a servant he is still liable for negligence in its performance. Fuller v. Jewett, 80 N. Y. 46; Kranz v. R. R. Co., 123 id. 1; Hankins v. R. R. Co., 142 id. 416 ; Benzing v. Steinway, 101 id. 547.

The insecurity of the place from the superincumbency of the planks was a contributory cause of plaintiff’s injury, for it was their fall from their precarious position that was the immediate occasion for his hurt.

Thus the negligence of the master concurred and co-operated with the negligence of the foreman in inflicting plaintiff’s injury, and so the defendant might be responsible for the, injury. Stringham v. Stewart, 100 N. Y. 516 ; Ellis v. R. R. Co., 95 id. 546.

Connolly v. Maurer, supra, is distinguished from the present case in the circumstances that there no question was made as to the sufficient safety of the place for work, and the injury was sustained by plaintiff’s going into a situation of danger by direction of a fellow-servant. Hussey v. Coger, 112 N. Y. 614, 618. Here the only place in which the plaintiff could do the master’s work was one of insecurity and peril.

We are of the opinion that from the evidence the jury might well infer the fact of defendant’s negligence; and that, therefore, the court committed no error in declining to dismiss the complaint and to direct a verdict for defendant. Kranz v. R. R. Co., 123 N. Y. 1, 3.

Since our conclusion proceeds upon the postulate of the defendant’s freedom from liability for the negligence in hoisting the tank, and his responsibility, as matter of law, for the perils of the place in which the plaintiff worked, it may be thought that any misdirection of the court as to defendant’s liability for the foreman’s acts was necessarily of no prejudice to the plaintiff. No culpability is imputed to the defendant for the foreman’s negligence, and, upon the proof, the jury were authorized to find the defendant responsible for the insecurity of the place in which the plaintiff was working.

Still if, by charge or refusal to charge, the court gave the jury to understand that they might find against the defendant because of its responsibility for the negligence of the foreman in hoisting the tank, we cannot know but that this was the very ground of the verdict; and, if so, such misdirection may have been of mischievous consequence.

■The court was requested to charge “ that the defendant is not responsible to the plaintiff for the result of an accident occurring from the negligence of a fellow-servant of the plaintiff,” to which the response was: I charge this purely as a proposition of law, but it has no application, as the injury is alleged to have happened through the negligence of the foreman of the defendant,” to which statement the defendant duly excepted. Again, the defendant asked the court to charge “ that the negligence of a fellow-servant is not to be imputed to the defendant, even though he be of superior capacity,” to which the answer was: I decline to charge that. It is one of the requests to charge, hut it does not apply to this case. If you claim there was some evidence of negligence of the fellow-servant other than the negligence ■of the foreman, then I will charge that,” to which refusal to ■charge as requested due exception was taken.

From the language of the learned judge it is obvious that he did not regard the foreman as the fellow-servant of the plaintiff; that he communicated that notion to the jury; that they were given to unde) stand that the defendant was responsible for the negligence of the foreman; and that the verdict may have proceeded, and probably did proceed, upon the negligence of the foreman in hoisting the tank. In fact, the proposition that the defendant was liable for the negligence of the foreman in any particular of the transaction pervades the charge throughout, and is, indeed, the most conspicuous and impressive feature. With no intimation from the court that the defendant might be held for its negligent omission to protect the plaintiff by the removal of the planks, the jury must have founded their verdict upon the unsteady movement of the tank in the act of hoisting; that is, upon the negligence of the foreman.

The judgment should be reversed, with costs to abide the ¡event.

Bookstaveb and Bisohofe, JJ., concur.

Judgment reversed, with costs to abide event.  