
    Jacob Kimmer, as Administrator, etc., Resp’t, v. John Weber et al., App’lts.
    
      (Supreme Court, Central Term, First Department,
    
    
      Filed November 16, 1894.)
    
    1. Master and servant—Fellow.
    A foreman, who has full charge of the work and authority over the workmen, is not their fellow-servant.
    
      2. Evidence—Personal injuries.
    In an action for the death of an apprentice, the wages actually received by decedent is admissible on the question of damages, though he was entitled, under his contract, to less than he received.
    3. Same.
    Testimony of the father that decedent was in the habit of giving him a certain sum, is competent to show that decedent was earning that sum, though the witness has no personal knowledge as to the amount earned.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order nenying a motion for a new trial.
    
      Hamilton Wallis, for app’lts; H. B. Barnum, for resp’t.
   Van Brunt, P. J.

This action was brought to recover damages sustained by reason of the death of the plaintiff’s intestate and son. At the time of the accident the deceased was nearly 19 years of age, and was working for the defendant as an apprentice. The defendants were builders, engaged extensively in building operations in this city, and at the time in question were employed in reconstructing Koehler’s brewery, on the corner of Twenty-ninth street and First avenue, where they employed a gang of men, of whom the deceased was one, the foreman being a man by the name of Joseph Turner. It appears that, for some time prior to the happening of the accident which resulted in the death of the deceased, there were working in this building, besides the masons, a gang of plumbers, and also a gang of carpenters, both of whom were entirely independent of the deceased. The plumbers had been using a scaffold constructed for them in the prosecution of their work in the lower stories of the building, which was taken apart and used in the upper floor, where the accident took place, and there re-erected. The ceiling, however, being much higher on this floor than on the lower floor, the height of the scaffold was increased by fastening uprights upon its top, and the planks forming the plumbers’ scaffold were placed on or near the top of the structure. While the plumbers were engaged upon this last floor, it became necessary for the masons in defendant’s employ to do some word on the ceiling. For this purpose they erected a structure of their own, partially resting upon this plumbers’ scaffold and partially resting upon a support which was erected by themselves. The fact of the insufficiency of this scaffold was "called to the attention of Turner, who was the foreman of the deceased, and had been such for some ten years, and gave all the orders to the men who were employed about the premises, although one of the defendants was accustomed to come to the work once or twice each day. Turner replied, to the suggestion of the insufficiency of the scaffold, “ Well, I guess it is all right; ” and the men went on working upon the scaffold under the directions of Turner. After the scaffold had been used for some time, in making some changes one of the cross pieces broke, the scaffold fell, and the deceased was so injured that he died shortly thereafter. The question presented upon the' trial was whether the defendants were liable because of the insufficiency of this scaffold. The jury having rendered a verdict in favor of the plaintiff, from the judgment thereupon entered, and from an order denying motion for new trial, this appeal is taken.

It is urged that the court below erred in submitting any question to the jury, upon the ground that there is no evidence in the case to connect the defendants personally with the accident; and that if any negligence was shown it was that of Turner, the foreman of the gang of laborers, who was a fellow servant, and for whose negligence the defendants are not responsible. ' It is undoubtedly true that if the position of Turner was of such a character that he was to be considered as a fellow servant his negligence cannot be imputed to the defendants. But if Turner stood in the place of the defendants, with respect to the masons employed upon this work, then the defendants would be liable for any negligence of his which resulted in injury to their servants. That the latter was his position seems to have been satisfactorily established by the evidence. It appears that Turner gave all the orders to the men, even in the presence .of the defendants; that the only interest which they took in the conduct of the work was that one of them went there once or twice daily and talked with Turner—giving no directions to the men, and leaving the whole conduct of the work to Turnen This seems to bring the question within the rule laid down in the case of McGovern v. Central Vt. R. R. Co., 123 N. Y. 281; 33 St. Rep. 416, where a principal was held liable for the action of his superintendent, such superintendent having the entire control of the elevator in which the accident happened. It was also held in the case of Pantzar v. Tilly Foster Mining Co., 99 N. Y. 368, that where a coal mine was conducted under the management of a superintendent, who had full power and control and discretion in conducting the work, the owner was liable for the negligence of such superintendent. In the case at bar it is apparent that Turner had full charge and control of the work. He is the only person who gave any directions to the men as to the method of the prosecution of the work, and it is evident that the defendants intrusted the same entirely to him. They would have appeared to exercise no control over the workmen, but simply to have consulted with Turner, who was conducting the work for them. From this evidence, the court had a right to hold that Turner had full control of the work and full discretion as to the method of its prosecution, and that therefore the defendants were liable for any negligence on his part which resulted in injury to their servants. And the jury having found, upon the evidence to which brief notice has been called, that the scaffold was insufficient for the purpose for which it was intended, and the accident resulted therefrom, and that Turner was aware of its unsafe condition, and failed to remedy the defects, or to provide a safe and stable scaffold for the workmen to work upon, the right of the plaintiff to recove the damages sustained because of the insufficiency of the scaffold seems to be established.

Certain exceptions have been taken to the admission of evidence which it may be proper to notice. It is claimed that it was erroneous to admit evidence as to the wages the deceased received. This evidence was objected to upon the ground that the articles of apprenticeship were conclusive upon that point, and that any payment which may have been made to him beyond that which was called for by the articles was a mere gratuity, and any agreement to pay anything further for his services was void for want of consideration. We do not see that this exception was well taken. The plaintiff had a right to show what amount this deceased was earning at the time; and, although his employers may have been accustomed to pay him more than they were under legal obligation to do, the fact that the articles of apprenticeship did not require such payment in no way rendered the evidence incompetent. It was pertinent to the question of the pecuniary loss which bad been sustained by the next of kin of the deceased. It is urged that it was error not to strike out this evidence because, upon cross-examination, the witness was shown not to have any personal knowledge of the amount which the deceased received. But it is apparent, the witness having sworn that this was the sum which his son was accustomed to give him out of his wages, that he had precisely the knowledge which it was important to lay before the jury, namely, the pecuniary loss which he had suffered by reason of his son’s death. The other exceptions to the admission of evidence do not seem to be worthy of particular mention.

Certain exceptions to the judge’s charge are called to our attention. It is urged that the exception to so much of the charge as charged “ that if the foreman is negligent the employer is himself liable as though he himself was negligent ” was well taken. The court, in reply to this exception, stated: “ If the foreman is negligent in the performance of a duty resting upon the employer, the employer is just as much liable as if he personally had superintended the performance of the work. That is what I think I said, and intended to say.” It is urged that the court should have gone further, and instructed the jury what were the duties testing upon the employer. This the court had already done. He had charged the jury “ that it is a legal duty resting upon the employer to see that such structures and such appliances or machinery as one of his employes is required to use in the natural and necessary prosecution of his business are adequate or reasonably adequate for that purpose; ” which seems to have been a correct exposition of the law.

It is also urged that the exception to so much of the charge as charged that there was a conflict of evidence as to how the accident happened was also well taken, in that it is claimed that there was no conflict of evidence as to how the accident happened. It does not seem to us, whether the court was mistaken or not in charging that there was no conflict of evidence upon that point, that any injury has been sustained by the defendants thereby. But we think, upon a reading of this case, that it is not apparent precisely how the accident happened, and that there are discrepancies in the statements of the witnesses as to how the break occurred which caused the scaffold to fall. It is true that it is conceded that some of the fellow servants of the deceased were in the act of handling a heavy timber in connection with this scaffold; but precisely how that timber caused the scaffold to break is a matter of dispute between the witnesses. Therefore the court was entirely right in saying there was a conflict of evidence. Upon the whole case, we are of the opinion that the judgment and order appealed from should be affirmed, with costs.

All concur.  