
    Lizzie J. Hale, Respondent, v. Wayside Knitting Company, Appellant.
    
      Negligence—injury from, the falling of a pile of incomplete garments placed behind the chair of an employee operating a sewing machine.
    
    In an action to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant, it appeared that the plaintiff operated one -of several sewing machines which stood upon a long table; that it was the duty of one of the defendant’s employees, who was about seventeen years old, to put bundles of unfinished garments at a place from which they could be conveniently taken by those working at the table; that on the day of the accident this boy built on the floor behind the plaintiff’s chair a pile of material six feet ■square and six. or seven feet high, and that the pile finally tumbled over forcing the plaintiff’s face down upon her machine and causing her to sustain injuries. It further appeared that the boy was about two hours building the pile, during all of which time the plaintiff saw what he was doing; that he could have erected the pile so far behind the plaintiff that it would not strike her if it did fall, or have built it wider on the bottom and have thus diminished . ■ its height.
    ' Held, that in the work of placing and erecting the pile of material, the boy was a fellow-servant of the plaintiff, and that the defendant was not liable for his act in making unsafe the place furnished to the plaintiff in which to do her work.
    Appeal by the defendant, the Wayside Knitting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 5th day of October, 1900, upon the verdict of a jury for $5,000, and also-from, an order entered in said clerk’s office on the 5th day of October, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    The work which this plaintiff was required to perform by the defendant was to sew up certain seams on shirts and drawers in process of manufacture. She did this by a sewing machine. The place in which she was required to work was a large room, in which' was a long table, and upon which, on either side, were fastened the sewing machines, run by power taken from a line shaft.
    Several other employees worked at this same table, and each was seated in a chair by the table in front of the machine at which she worked. Each article upon which these' seams were to be sewed was cut in forms ready to be sewed together, and folded up, and about twelve of these were tied into one bundle, each bundle weighing about eight pounds. It was the "duty of the witness Marks, another employee of the defendant, who was then about seventeen-years old, to go and get these bundles and pile them up in some place contiguous and convenient to those working at this table, and each girl was required to get for herself from such pile the material as fast as she needed it to work upon. The plaintiff had worked for the defendant at this work about two years, and Marks had worked at getting and piling up these bundles about six months prior to the accident. Back of the plaintiff’s chair,there was an open space on the floor, in which Marks, after dinner, on January 8, 1899, began to pile up such bundles for those working at this table. He piled them up in rows about six feet long on the floor, and enough rows to cover about six feet measured the other way, thus starting a pile about six feet square. This pile he built up in this way, one row on top of another. The space which he left between the pile and the chair in which the plaintiff sat at her work was large enough for him to walk through. Just how wide it was does not appear, but, as the pile grew in height, Marks placed a chair in such passageway, and, standing on it, reached across the pile in placing the bundles on it. From the chair, as the height increased, he got up on top of the pile, and so continued to take up and place- the bundles until the pile was six or seven feet high. He was about two hours at this work, and during all- that time the plaintiff was at work in her chair and saw just what Harks was doing and the height to which he was extending the pile. Finally, as Harks got down from the pile onto the chair and thence onto the floor, just as he turned to go from the pile it toppled over, some three or four rows of it, on the side towards him and the plaintiff, and some of it striking the plaintiff on the back and head as she sat in her chair, forced her face down upon the machine, and the back of the needle bar struck her three sharp blows in the face before she could stop its running or get away from it. By this injury she claims very serious nervous complications have been caused, which have permanently impaired her health and caused her much damage.
    She brought this action to recover for the damage so sustained, and at the trial the jury rendered a verdict in her favor for $5,000. From the judgment entered upon such verdict, and the order denying a new trial, this appeal is taken.
    
      H. D. Bailey, for the appellant.
    
      G. B. Wellington, for the respondent.
   Parker, P. J.:

From the conceded facts in this case it is very clear that the place which the defendant furnished to the plaintiff, in which to sit and run her sewing machine, was in all respects a safe one, except in so far as the pile of goods which Harks placed behind her rendered it unsafe.

And the only negligence that can be charged, as the cause of her injury, is the erection of that pile at the place and in the manner in which Harks placed and erected it.

It seems equally clear that Harks, in the work of so placing and erecting that pile, was a fellow-servant of the plaintiff — indeed the trial judge so charged, without exception on the part of the plaintiff — and unless there is something in this case to except it from the general rule, this defendant is not liable for an injury resulting therefrom.

As a general rule, the master is not responsible to a servant for an injury caused by the negligent manner in which a co-servant performs his work. (Keenan v. New York, Lake Erie & Western R. R. Co., 145 N. Y. 190, 196; Sherman v. Rochester & Syracuse R. R. Co., 17 id. 153.)

At the time of this accident Harks was employed to bring the goods and pile them in some convenient place, from which the girlsr at work at that table could easily procure them. It was a very simple matter. There seems to have been ample space in the rear of the plaintiff’s seat for a pile to have been erected so' far behind her that in no event could it hit her if it did fall over. And also,, it is very evident that it was by no means necessary to build the’ pile as high as' six or seven feet. There was' abundant space to-build it wider on the bottom and thus diminish its height. Every means was afforded Harks to have so placed that pile that he would have fully accomplished the purpose of his work and at the same-time have avoided any possible injury to • others. A change of a. foot or two in its location, or a slight increase in its length and. breadth, would have made it safe beyond all apprehension. With every facility at his hand- to perform so simple a duty in a safe» manner, there was no reason why the defendant should apprehend any damage from its performance. Hence it cannot be fairly claimed that the defendant has violated the rule that requires th& master to furnish a reasonably safe place in which to perform his-work. Clearly the place was perfectly safe had not Harks carelessly and in utter disregard of the conveniences which the defendant had furnished, made it unsafe. To such a -condition that rule> does not' apply. (Bailey v. Delaware & Hudson Canal Co., 27 App. Div. 305; Hogan v. Smith, 125 N. Y. 771; Cullen v. Norton, 126 id. 1; Perry v. Rogers, 157 id. 251.)

Upon this question the trial judge charged as follows: If you; find that * * * the defendant did not furnish a reasonably safe place for the plaintiff to work in, that this cloth, this pile of’ cloth, piled as it was, rendered her position at the machine unsafe, or not a reasonably safe one, and that through this failure on the part .of the defendant, the Wayside Knitting Company, and through, no negligence on the part of the plaintiff, this pile of cloth fell; upon and injured plaintiff, then I charge you that plaintiff can recover against the defendant in this action,” etc. To this charge* the defendant excepted.

The following requests to-charge were also made by the defendant : '“ That Harks was not the alter ego of the defendant in respect: to any work done by him as shown in this case.” Also, If the; plaintiff was injured, not by reason of the failure of defendant to provide her with a reasonably safe place to work, but by reason of the manner in which Marks piled up these goods, the verdict must be for the defendant.” Each of these requests the court refused to-charge and the defendant excepted.

Eeading these instructions and requests together, it is clear that the court instructed the jury that if the erection of the pile rendered the plaintiff’s position at the machine unsafe, it was negligence on the part of defendant for which she could recover.

So the case has been decided upon one of two theories — either-that the defendant is liable for the negligent act of Marks in performing his work as a co-servant of the plaintiff, or else that the defendant is liable for not furnishing a reasonably safe place for the plaintiff to work in, although such place was made unsafe solely-through the careless act of a co-servant, and his negligent omission to avail himself of the means furnished him by. the defendant for doing his work in a different and absolutely safe manner. Evidently, tinder the' cases above cited, neither of these theories is correct; and hence error has been committed, for which a new trial must be granted.

For this reason, we need not consider the plaintiff’s claim that the defendant is liable because, having notice that its work was being done in a reckless and dangerous manner, it made no precautionary rules restraining the same. Whether it had such notice, and whether the work was so being done, were questions not submitted to the jury and upon which it has never passed. Although we need not pass upon those questions now, it may be well to say that in this record we find no evidence sustaining either proposition. But the case was sent to the jury entirely upon the theories above stated; and inasmuch as we deem them erroneous, we must for that reason reverse this judgment.

Judgment reversed on the law and the facts and a new trial granted, costs to abide the event.

All concurred.

Judgment and order reversed on the law and facts and new trial granted, with costs to appellant to abide event.  