
    Nazzarino Giovagnioli, an Infant, by Frank Fiore, His Guardian ad Litem, Respondent, v. Fort Orange Construction Company, Appellant.
    Third Department,
    December 28, 1911.
    Master and servant — negligence —in jury by “tripper,T ear — Employers’ Liability Act—failure, to, provide safe, place to- work — damages- — medical services — parent and child — emancipation of minor.
    Where a servant sues under the Employers’ Liability Act to- recover for injiuriesreeeived when a ‘■‘tripper ” can: used in connection with a belt conveyer to deliver building materials left the track, causing him to fall from the step of the car where he was stationed to perform his duties, and it appears that it would have been practicable to use some mechanical means to keep- the car- on the track, it having in the past shown -a tendency to tip over,, rather than to depend upon the physical strength of workmen to hold- it on the track, the jury is justified m. finding the master negligent in failing to supply a safe place in which to-work..
    Where the master’s superintendent of excavation called a physician to attend such employee at the time of the injury, but there is no proof that he had! authority to-bind' his- master for physicians’ bills extending over a period of some months, it is not error to> refuse tO' charge in substance that the plaintiff could not recover the cost of medical attendance upon the ground that it was rendered upon the credit of the master.
    Where the superintendent had1 no power, express or implied, to incur any extended liability for medical services rendered to an- employee, any agreement for such services made by him with the physician would not be binding on his employer.
    Where the plaintiff, although a minor, was receiving bis own wages and ■ paying-his own expenses, there was an emancipation by his parents and he can recover for medical attendance and for hospital- expenses, for they are his- liabilities.
    Houghios, «L, dissented in part.
    Appeal by the defendant, the Fore Orange Construction Company, from a judgment, of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 18th day of October, 1910, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 21st day of October, 1910> denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Countryman, Nellis & Du Bois [Andrew J. Nellis of counsel], for the appellant.
    
      Walter H. Wertime [Peter A. Delaney of counsel], for the respondent.
   Smith, P. J.:

This is an action brought under the Employers’ Liability Act (Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14) to recover damages for personal injuries sustained by respondent while employed by appellant in the construction of a certain lock upon the State barge canal at Waterford, N. Y., at about eleven o’clock P. M. on the night of November 23, 1909. The walls of the lock in question were to he of concrete about thirty feet high and for purposes of construction were partitioned off into sections about fifty feet in length and these sections were filled alternately to the depth of about four and one-half feet. The concrete was mixed some, distance away and was then placed on a belt conveyer twenty inches wide and about twelve hundred feet long which passed along the lock upon a trestle. Üpon this belt conveyer was an apparatus known as a tripper, consisting of a small car upon trucks and having two rollers over which the belt passed. The upper roller reversed the direction of the belt and the material on the belt then dropped off into a chute and from there passed into the lock sections mentioned. As the work progressed the tripper was moved backward and forward along the belt by two men, one on each side of the tripper, who turned cranks connected by cogwheels to the truck of the tripper car. The position of the tripper was thus frequently changed in order that the concrete might be properly distributed in the forms, but just how frequently was a matter of dispute. Respondent claimed that the tripper at times was not moved for periods of from seven minutes to half an hour, while appellant sought to show that the tripper was continuously being shifted when the conveyer was in full operation. It is undisputed that the tripper as constructed had a tendency to tip forward owing to the pull of the belt upon the upper Toller, especially when the belt was carrying a heavy load, and on several occasions prior to the accident this had happened and the car had left the track and more or less damage.had resulted. ¡No mechanical provision seems to have been made to prevent such an occurrence, and appellant claims that it was the duty of the two men operating the cranks to hold the tripper car to the rails. The capacity of the conveyer was over twenty tons of material distributed along its entire length. Respondent was a minor about eighteen years of age, not speaking English, and was employed as a common laborer. His duties were to stand upon the tripper car, on an unguarded step-about thirty inches long and eighteen inches wide, and to loosen with a stream of water from a hose any concrete that might adhere to the belt. He also had two lighted lanterns to be used for signaling to the motorman in charge of the electric power operating the belt, thus ordinarily holding the hose in one hand and a lantern in the other. He had been working on the tripper only three days when the car tipped up and left the track and he was thrown off and into the partially filled lock section below, and sustained serious and permanent injuries for which he was awarded a verdict of $5,000 in the court below.

Respondent’s claim was that the tripper was an unsafe place in which to work on account of its tendency to tip up and leave the track, which must have been known to appellant, and the evidence seems sufficient to justify such a finding, in effect, by the jury. Appellant claims that by reason of the frequent, if not continuous, shifting of the tripper by i the two workmen operating the cranks, it was impracticable to have the tripper furnished with clamps for the purpose of fastening it to the rails and so preventing its evident tendency to tip up. But even if the tripper was constantly in motion when the conveyer was in operation, about which there is considerable doubt, it was surely practicable to use some mechanical means or different construction of the car to keep the machine on the rails so as not to rely for this important matter on the two workmen mentioned, whose combined efforts might easily become of no avail in case of an extra heavy load or sudden strain of any kind on the belt.'

A more serious question arises from the refusal of the learned trial court to charge, as requested, that if the surgeon-attended respondent at the request of the superintendent of the appellant, intending: to- render Ms, services upon, the credit, and. at the charge of the- appellant, the respondent, was not, liable and the; services rendered could, not be recovered for in this, action, The ©mfy evidence in the case upon wMeh tibia request-to, charge could be based, is, ,the testimony of the surgeon that, appellant’s, superintendent, called upon him to attend respondent — ‘ retained ” him. The party named testified that, he was “ superintendent of excavation ” for the appellant. The- services-of the surgeon, extended over a period of five months wMle respondent was in the- hospital and. also for some months, after1 that. The evidence seems; insufficient, to', support the charge, requested, inasmuch as the very natural act of the, superintendent in calling a doctor to attend a severely injured workman as; an emergency matter would not be sufficient, of itself to show that the superintendent, ever intended to, bind his employer1 for the- full, amount of that doctor’s bill extending1 over a, period, of months and. amounting to- $60.0, the stun claimed here-as-the reasonable value of such services, htor is the use of the word “ retained ” without more sufficient, to, change the situation. If tMs- superintendent, or any other officer of appellant had had any agreement- or understanding with the surgeon whereby appellant was to- become liable for bis bill such fact should have been brought, out definitely upon the. trial. (See Van Gaasbeek v. United States Lace Curtain Mills, 132 App. Div. 596.) Moreover.,, it does' not appear that the superintendent of construction actually had, any power either express- or implied to, incur any such extended liability on the part, of his. employer, and for all that, appears in the case as to- his- duties, any such agreement if made' by him with tMs doctor would have- been outside of Ms duties,, and, therefore, not-binding upon this- appellant.. The request to- charge was, therefore,, properly refused.

If appeared upon the- trial that.-respondent was, receiving his1- own wages>, and paying- his own. way, and the. trial court, accordingly held that if he could, recover at all, the expenses- for 1 doctors’ and hospital bills-could be included in. the, recovery on the ground that these were Ms liabilities even although an infant.. As the evidence, mentioned was undisputed the trial court properly" held that it amounted to. an emancipation of this infant, and in such a case the obligation ordinarily resting upon a parent to provide necessaries for the child is removed, and the liability for necessaries furnished becomes that of the infant himself and in an action thereon his infancy is no defense. (29 Cyc. 1610; Johnson v. Gibson, 4 E. D. Smith, 231, 234.)

The judgment and order should he affirmed, with costs.

All concurred, except Houghton, J., who voted for reversal unless the plaintiff stipulates to reduce the verdict by the sum of $942, the amount of the physicians’ hills erroneously embraced therein, and if such stipulation he filed, then he voted for affirmance of the judgment as modified.

Judgment and order affirmed, with costs.  