
    Cornelius Bagley, Respondent, v. The Consolidated Gas Company, Appellant.
    
      Master and servant — planks falling from a scaffold upon a workman a risk of the employment — negligence of a foreman.
    
    In an action brought to recover damages resulting from injuries caused ny the alleged negligence of the defendant, it appeared that the plaintiff, an employee of the defendant, was directed to assist in hoisting a large tank into the pump house of the defendant through a window or archway before which a scaffold, having loose boards upon it, had been erected for another purpose. The tank was improperly attached to the hoisting ropes, and when it was hoisted it turned over and struck against the scaffold, knocking down the loose planks, one of which struck and injured the plaintiff. If the tank had been properly secured to the ropes, or if the boards upon the scaffold had been removed from or had been fastened to it, no injury would have resulted.
    Held, that the negligence which occasioned the injury was tnat of the foreman, a fellow-servant of the plaintiff, and that the plaintiff consequently could not recover;
    That the defendant had furnished the plaintiff a safe place and safe tools, and was not responsible for their negligent use by the foreman who superintended the work.
    Appeal by the defendant, The Consolidated Gas Company, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 9th day of December, 1895, upon the verdict of a jury, and also from an order bearing date the 5th day of December, 1895, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    
      Daniel Lord, for the appellant.
    
      Lorenzo Semple, for the respondent.
   Ingraham, J.:

As was said by Peckham, J., in the case of Cullen v. Norton (126 N. Y. 5): “ There is very little room for disagreement as to the principles of law in this class of cases, but the difficulty lies in their application to the facts of each special case.” And we can see no escape from the conclusion that the principles of law as there established by the Court of Appeals are controlling in this case.

In the case cited the defendant was the proprietor of a cement quarry, and the plaintiff’s intestate was engaged, with other men, under the direction of a foreman, in drilling rock in the quarry for blasting purposes. Prior to the accident eleven holes had been drilled in a perpendicular piece of rock, and were charged and fired, and but ten of them exploded. Doran, the defendant’s foreman, examined the unexploded hole, found the fuse unconsumed, but failed to remove it. The next morning he directed two of the workmen to drill holes in the rock within two feet of the undischarged hole, and at the same time ordered the deceased to drill twenty or thirty feet below. The exposed fuse shortly after, in some way, ignited the charge ; this exploded, casting out rock which fell on the deceased, killing him. The court held that the manner of the distribution of men for work, and the order of the foreman mistaken or negligently given, was a detail of the working or management of the business, the risk attending which had been assumed by the party taking the employment, and that the negligence of Doran in failing to remove the fuse, or in directing the plaintiff’s intestate to work at the place he did, near the hole in which the powder had not exploded, was not negligence of tlie master, but was the negligence of a fellow-servant, the court saying: “The accident resulted from a negligent act done in the very course of the work and by one of the fellow-workmen of the deceased. The negligent act was a part performance of the work itself, the risks of which the deceased had assumed. The master had provided a competent and experienced foreman, who had been in his employment a number of years, and he was not chargeable with the consequences of a place for work made dangerous only by the carelessness and neglect of a fellow-servant, * * * although that fellow-servant happened to be the foreman.”

As a further illustration of the application of this rule the case of Hogan v. Smith (125 N. Y. 774) is instructive. In that case the plaintiff’s intestate was a longshoreman engaged with others in loading a vessel with flour. “ In the square of the hatch and above the hold the workmen had laid plank, and built upon it with bags of flour what is called a 'stool,’ upon which four men stood and received the flour lowered to them in slings, and then delivered it to other men who stowed it away. It was customary for the longshoremen to extend the planks upon which the stool ’ was constructed to some distance outside of it, but that precaution had been omitted, and the deceased was struck by one of the descending loads and killed by falling into the hold. If the plank had been laid in the usual manner his life would have been saved. The negligence, therefore, upon which the judgment rests is the omission to lay the exterior plank, and the question discussed is to whom that duty pertained and whose negligence caused the injury.” The deceased commenced the labor after the stool had been built and without knowledge of the omitted plank and the possibility of danger. And it was held that the duty to close an opening by laying additional plank was that of the servant and not the master, and that no negligence on the part of the master was shown.

And in the case of McCampbell v. Cunard S. Co. (144 N. Y. 552) the same principle was applied. There the accident was caused by the imjtroper attachment of a skid by which one of the defendant’s steamships was being unloaded. The plaintiff with another employee of the company was directed to take a truck and transfer drums of caustic soda from the deck of the vessel to the dock. The skid was placed in position with one end upon the deck of the vessel and the other upon the dock. The plaintiff and his associate took the truck, drew it up the skid on to the vessel and placed it in position. Tho drums of soda were then raised from the hold of the vessel and placed on the truck. The plaintiff started down the skid drawing the truck after him. "When he was about half way down the front wheels of the truck dropped into an opening between the end of the skid and a “mouthpiece,” causing a sudden jerk of the handle of the truck', which threw him down, causing the injury. The court held that the defendant was not liable, and that the negligent rigging of the skid was the act of the co-employees of the plaintiff’s intestate.

We do not think that this case can be distinguished from the cases cited. Here a scaffold was constructed which appears to have been entirely safe for the purpose for which, it was to be used. The plaintiff in the employ of the defendant was directed to assist in hoisting a large tank into the pump house of the defendant through a window or archway. Upon this scaffold several boards had been placed which were not tied or fastened. The tank to be hoisted appears to have been improperly attached to the ropes, so that upon its being hoisted it turned over, striking in some way against a part of the scaffeld, knocking off the boards, one of which struck the plaintiff. If the tank had been properly secured to the ropes, or if the boards upon the scaffold had been removed or tied, no injury would have resulted. The defendant had supplied a proper scaffold, with proper boards and proper appliance for the work, and a competent foreman to direct it, and any negligence in the use of these materials by the foreman was clearly, under the cases above cited, the negligence of a fellow-workman, and one of the risks which the plaintiff assumed in accepting- the employment and undertaking the work that he was directed to do. There was thus no neglect of the defendant to supply the plaintiff with a safe and proper place in which to prosecute his work, safe tools and implements for his use, or a competent foreman to direct him in the work that he was to do, but simply a neglect in the proper management and use of the materials furnished. *

An examination of the cases relied on by the plaintiff, and an endeavor to reconcile the various decisions upon this question would serve no good purpose. The cases here relied on are the latest decisions of the Court of Appeals upon this question, and are controlling upon us; and we think they require that we should hold that there was no evidence of the defendant’s negligence which would justify a recovery.

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

Van Brunt, P. J., and Rumsey, J., concurred; O’Brien, J., dissented.

O’Brien, J.

(dissenting):

The accident occurred by the outward swing of ropes, attached to a tank which was being hoisted into a building, striking part of a scaffolding which had been used in the erection of the building into which the tank was being hoisted. This scaffolding had been erected about the front of the building for masons to stand on while repairing walls which had been damaged by fire, and consisted of certain uprights, across which were placed poles lashed to the uprights with ropes. Timbers, called foot rests, were set loosely in the wall. Loose planks were placed upon the foot rests upon which the masons stood while repairing the injured walls. The object for which the scaffold was erected had been accomplished — the masons’ work was done. The defendant undertook to hoist a tank weighing about five tons into the building through a window or archway, which latter was obstructed by the scaffold. It became necessary to make some change in the scaffolding in preparing the place for the men to work, and the foreman in charge had caused to be removed the loose planks upon a part of the scaffold, but left loose planks upon the other part under which the fall for hoisting the tank was led out. To hoist the tank, the foreman rigged a derrick with blocks and fall and secured it by -guys. Preparations being thus advanced, the foreman, requiring more help, sent for plaintiff, who was employed at another place, and ordered him to assist in hoisting, indicating the place where he was to work, which was under that part of the scaffold from which the loose 'planks had not been removed. As the tank was lifted from the ground it canted outwards, and the outward swing of the ropes struck the foot rests of the scaffolding, detached them from their placej and these with the loose planks fell a distance of nearly twenty feet, one of the planks striking the plaintiff upon the head and causing him severe and serious injuries.

It is conceded that the manner in which the foreman undertook to raise the tank was negligent, and if a recovery were sought on that ground solely 1 would concur with Mr. Justice Ingbaham that tiie cases of Cullen v. Norton (126 N. Y. 5); Hogan v. Smith (125 id. 774), and McCamphell v. Cunard S. Co. (144 id. 552), would be controlling, because where, as in those cases, the injury occurs by reason of the negligence of a co-servant, -though one of a higher grade than the one injured, in performing a duty arising during the progress of the work and which was included as a detail in the performance of the work itself, for such an injury the master is not liable. Where the very nature of the employment and of the work is dangerous, and that apparently so to the person accepting the same, he assumes all the risks. That as I view it was the reason and principle involved in the Norton case. But the opinion recognizes the well-settled rule of law that a master is bound to furnish reasonably safe and suitable implements for the use of the servant and a reasonably safe place of employment, considering the nature of the employment itself.”

At the outset then it is necessary to determine what was the proximate cause of the injury. Was it the negligence of defendant in failing to furnish plaintiff with a safe or proper place in which to do his work, for which defendant would be liable, or was it the negligence of a fellow-servant in hoisting the tank for which defendant would not be liable? Upon the evidence the answer involved a mixed question of law and fact, which under proper instructions by the court was left to the jury. And their verdict cannot be said to be without evidence to sustain it, because it appears that the accident could not have happened as it did, however careful or negligent the foreman may have been in hoisting the tank, if the scaffold or even the loose planks had been removed.

Apart, therefore, from the question as to the negligence of the foreman in failing to adopt proper precautions in the details of the work of hoisting the tank, the discussion here narrow’s down to whether the place in which the plaintiff was set to work was a safe and proper place. If it was not, the defendant cannot escape liability upon the theory that the duty of providing a safe place was delegated to the foreman, who is to be regarded as a co-servant, and that for the latter’s failure the defendant is not liable, because the rule is too well settled to be disturbed, that where an employee is injured by the negligent performance of an act of duty which the master as such is required to perform, the master is liable, although the negligence is that of a fellow-servant to whom the performance of the duty was intrusted, and this irrespective of the rank of the person guilty of negligence. (Hankins v. N. Y., L. E. &, W. R. R. Co., 112 N. Y. 116; Stuber v. McEntee, Id. 201; Benzing v. Steinway & Sons, 101 id. 517 ; Pantzar v. T. F. M. Co., 99 id. 376; McGovern v. C. V. R. R. Co., 123 id. 287.)

The evidence shows that the danger to be apprehended from attempting to lift the tank with a derrick was known to the foreman, who in the selection of a safe place was acting for the master, and the suggestion was made that before lifting the tank, the scaffolding, or at least the loose planks thereon, should be removed. And while the planks immediately in front of the opening or archway through which the tank was to be hoisted were removed, the foreman rejected the suggestion as to the removal of the scaffolding or the remainder of the planks. The plaintiff, on the other hand, had no knowledge of the conditions of the place in which he was put to work, which was immediately beneath a structure which, in connection with the hoisting of the tank and the reasonable probability that the ropes or some portion of the tank while in process of hoisting might come in contact with the scaffolding, cannot, as a matter of law, be regarded as a safe place.

I think, therefore, that in selecting for the plaintiff the place in which he was to work the foreman was performing a duty delegated to him by the master, for which, in the event of negligence, the latter would be responsible; and, upon the evidence here, I think it was properly submitted to the jury as a question of fact whether such place was a reasonably safe and proper place, and the jury having resolved this question against the defendant, their verdict should not be disturbed.

I, therefore, dissent from the majority and think the judgment should be affirmed, with costs.

Judgment reversed, new trial ordered, costs to appellant to abide event.  