
    Arthur Cashmore, an Infant, by Sarah H. Cashmore, His Guardian ad Litem, Respondent, v. Peerless Motor Car Company of New York, Appellant.
    Second Department,
    Master and servant — negligence ■—Labor Law, section 200, construed — negligence of servant having authority over fellow-servant — act causing splinters to fly from piece of steel — verdict not excessive — statutes — intention of Legislature — adoption of wording of former statutes.
    Where the Legislature incorporates the wording of a previous statute into a new statute, it is presumed to have been familiar with the former statute and with the construction given to it by the court.
    When the Legislature by chapter 353 of the Laws of 1910 amended subdivision 2 of section 200 of the Labor Law so as to make a master liable for the negligence of any person inhis employ “ intrusted with any super- ■ intendénee ” or by reason of the negligence of any person “ intrusted
    
      with authority to direct, control or command any employee in the performance of the duty of such employee,” that being substantially the reading of section 42a of the former Railroad Law, it intended that the employer should be liable not only for the negligent acts of a superintendent but also for those of a servant who, though not a superintendent, is intrusted with authority to direct, control or command another employee in the discharge of his duty, no matter how limited that authority may be.
    In an action under said section, as amended, a master is liable for the negligence of the foreman of his machine shop who struck with a steel hammer a piece of steel shafting which he had fastened in a vise and had directed the plaintiff to hold, causing pieces of steel to fly therefrom and enter the plaintiff’s eye causing total blindness. This, because he had charge of the men in his department and decided how the work Wa s to be done.
    A verdict of $25,000 for such injury is not excessive.
    Appeal by the defendant, the Peerless Motor Oar Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of May, 1912, upon the verdict of a jury for $25,000, and also from an order entered in said clerk’s office on the 14th day of May, 1912, denying the defendant’s motion for a new trial made upon the minutes.
    
      John C. Robinson, for the appellant.
    
      John J. Kuhn, [Owen N. Brown with him on the brief], for the respondent.
   Rich, J,:

This appeal is by the defendant from a judgment in an action brought to recover for negligence. At the time of the accident on October 13, ‘ 1911, plaintiff was employed in defendant’s factory. It is conceded that if the recovery plaintiff has obtained is to be sustained, it must be under subdivision 2 of section 200 of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], as amd. by Laws of 1910, chap. 352).

The jury has found, and there was sufficient evidence to sustain the finding, that, while engaged in the performance of his duties the plaintiff was seriously injured in consequence of the negligence of one Malone, who was a foreman in defendant’s machine shop, the negligent act consisting in striking a piece óf hard steel shafting, which was fastened in a vise and was held by the plaintiff at Malone’s direction, with a hard steel hammer, causing pieces of steel to fly from the shafting or hammer, some of which entered plaintiff’s eyes and made him totally blind.

It is contended that the negligence of Malone was that of a fellow-servant in a detail of the work, for which the defendant is not liable; that there was no evidence warranting the submission of. the question as to defendant’s liability to the jury, and that the trial court erred in its refusal to dismiss the complaint. Under the provisions of the statute prior to the amendment of 1910 (Chap. 352), this contention would have been sound, as the negligence of Malone was while he was engaged in the performance of a detail of the work and not an act of superintendence, in addition to which the principal duty of’Malone was not that of superintendence. (Gallagher v. Newman, 190 N. Y. 444; Guilmartin v. Solvay, Process Co., 189 id. 490; Falk v. Havemeyer, 123 App. Div. 657; McLaughlin v. Interurban St. R. Co., 101 id. 134; Hope v. Scranton & Lehigh Coal Co., 120 id. 595; Kujava v. Irving, 122 id. 375; Droge v. Robins Co., 123 id. 537; McConnell v. Morse I. W. & D. D. Co., 187 N. Y. 341.) When these cases were decided' that statute (Laws of 1902, chap. 600, § 1, subd. 2; since re-enacted by Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 200, subd. 2) provided that where'personal injury, was caused to an employee who was himself in the exercise of' due care and diligence at the time, “By reason of the negligence of any person in the service of the employer entrusted . with and exercising superintendence whose sole or principal duty is that of superintendence, or in the absence of such superintendent, of any person acting as superintendent with the authority or consent of such employer,” the employer might be held liable for such injury.

For many years the tendency of legislation has been to protect persons engaged in skilled and manual labor, the object being to make the employer more careful in the performance of his duties, as well as in the selection of persons placed in charge and control. In 1906 the Legislature, impelled thereto, as the Court of . Appeals said in Hart v. N. Y. C. & H. R. R. R. Co. (205 N. Y. 317), by “ the sentiment that the fellow-servant rule should he limited to those cases, where the employe, whose act occasioned the injury, was not in authority, or control,”, amended the Railroad Law (Laws of 1906, chap. 657, adding to Railroad Law [Gen. Laws, chap. 39; Laws of 1890, chap. 565], § 42a), eliminating therefrom the fellow-servant rule when the injury to the employee was caused by the negligence of a co-employee ‘ ‘ entrusted * * * with the authority of superintendence, control'or command of other persons in the employment * * * or with the authority to direct or control any other employee in the perf ormanceof the duty of such employee. ”

In 1910 subdivision 2 of section 200 of the Labor Law was amended, among other things so as to read: “2. By reason of the negligence of any person in the service of the employer intrusted with any superintendence or by reason of the negligence of any person intrusted with authority to direct, control or command any employee in the performance of the duty of such employee.” ' (Laws of 1910, chap. 352.) It will be noticed that the last sentence of this amendment is in substantially the same language as that of the corresponding sentence in the amendment to the Railroad Law. (See, also, Railroad Law [Consol. Laws, chap. 49; Laws of 1910, chap. 481], § 64, re-enacting Railroad Law, § 42a, supra.)

The Legislature is presumed to have been familiar with the existing statutes, as well as the construction given to them by the courts, and it is clearly evident that it was their intent, in response to the same public sentiment which Judge Gray speaks of, to extend to all employees the benefits and protection it had secured to railroad employees, and to enlarge the liability of all employers of labor in the same ratio and to the same extent that had been charged upon railroad corporations. It seems clear that it was the legislative intent to change the meaning of the language of subdivision 2, and by so doing to enlarge the class of servants for whose negligence the employer might be held liable. This is not only indicated by the title of the amending statute, “An Act to amend the Labor Law, in relation to employer’s liability, ” but by the language used in the amendment. Liability is first predicated upon the negligence of a servant “intrusted with any superintendence,” and second — in addition the disjunctive “or’’being used — upon the negligence of a servant “intrusted with authority to direct, control or command any employee in the. performance of the duty of such employee. ”

I think that the effect of this amendment is precisely the same as the amendment to the Railroad Law, and that the “ fellow-servant ” rule is entirely abrogated where the negligent act causing the injury is that of a person coming within the definition. The language is clear, and the Legislature has accomplished just what it intended, viz., that an- employer should thereafter be liable for the negligent acts, not only of a servant intrusted with superintendence, but also of a servant who, though not possessed of the authority of a superintendent, is intrusted with authority to direct, control or command another employee in the discharge of his duty, and no matter how lim- ■ ited the authority of the negligent servant may be, if he comes within the statutory definition the master is hable for his negligence; he is the alter ego of the master while in the discharge of his duties. It is the grade of the negligent servant, as well as the nature of the negligent act, that is to be considered now in determining the master’s liability.

Under this construction of the statute there can be no dispute as to defendant’s liability for the negligence of Malone, who was defendant’s working foreman. He had charge of the men in the department in which he was employed; he decided how the work was to be done and had authority over the helpers, as is testified by the superintendent and assistant foreman.

On the day of the accident plaintiff .was assigned to assist and work with Frank Danow, one of defendant’s méchanics, who directed him to take a ballrace off from a steel shaft, and while endeavoring to do this Fenton, the general superintendent, took the shaft to the machine shop and directed Malone to remove the ballrace, and Danow directed the plaintiff to follow the superintendent; he had the authority "to make this direction; it was the plaintiff’s duty to obey it, and he did so. The plaintiff testified that Malone was his foreman when he was in the machine shop, and this is shown to be so by the evidence of the superintendent. Upon being directed by Malone to hold the shaft, plaintiff said, to him, “I don’t want to hold it;” Malone replied, “Ton got to hold it.” He did as directed with the result that has been stated. Malone knew that the inevitable result of striking one piece of hard steel with another would he to cause flakes or slivers to fly therefrom. The plaintiff did not have this knowledge. No warning was given to him, and he was grievously injured in consequence of Malone’s negligence.

The judgment is not excessive, and it must be affirmed, with costs.

Present—'Jenks, P. J., Thomas, Care, Woodward and Rich, JJ.

Judgment and order unanimously affirmed, with costs.

January 17, 1913.  
    
      January 17, 1913.
  