
    Andrew F. Stourbridge, as Administrator, etc., of John P. Stourbridge, Deceased, Appellant, v. The Brooklyn City Railroad Company, Respondent.
    
      Negligence —defective beam on an elevated, railroad structure—used by a workman as a support from which to work—not a“plaae” nor an “appliance” — the master not liable for its breaking.
    
    In an action brought to recover damages resulting from the death of the plaintiff's intestate, caused by the alleged negligence of the defendant, it appeared that the defendant was engaged in constructing and affixing to the structure of its elevated railroad a trough to carry the trolley wire. Gross beams were fastened to the flanges of the railroad, and to these were bolted the troughs. The deceased was seated upon a cross beam, engaged in boring holes therein, when the beam broke, and he fell and was killed. The beams were procured from a reputable dealer and before being used were subjected to certain tests. The deceased weighed but 120 pounds, and the beam which broke was apparently good, but in the interior there was a knot or curl whose presence was undoubtedly the cause of its breaking.
    
      Held, that the master was not liable;
    
      That the beam was neither a place nor an appliance provided for the work of the deceased, but was part of a structure which he and the other workmen were engaged in erecting.
    Appeal by the plaintiff, Andrew F. Stourbridge, as administrator, etc., of John P. Stourbridge, deceased, from a judgment of the City Court of Brooklyn m favor of the defendant, entered in the office of the clerk of said court on the 8th day of October, 1894, upon a nonsuit granted by the court after a trial before the court and a jury at a Trial Term of said court, and also from an order entered in said clerk’s office on the 22d day of November, 1894, denying the plaintiff’s motion for a new trial made upon the .minutes.
    
      Paul F. De Fere, for the appellant.
    
      William W. Goodrich, for the respondent.
   Cullen, J.::

This action is brought by the administrator of the servant against the master for negligence, causing the servant’s death. The defendant was equipping its surface railroad for operation by electricity. For this purpose it was constructing and affixing to the structure of the elevated railroad a channel or trough to carry the trolley wire. Cross beams were fastened to the flanges.of the elevated railroad; to these were bolted the channels or troughs. The plaintiff’s in testate was engaged in boring holes in a cross beam through which to. pass a bolt. In that work he was seated on the beam. While at work the cross beam broke, precipitating him to the ground, by which he received injuries from which he died two days later. The deceased weighed about 120 pounds. It was conceded that the beam, if sound, should have sustained three or four times this weight. The only evidence as to the condition of the beam was given by two co-employees of the deceased, both of whom testified that the break was a long one. One of the witnesses further testified that, on examining the broken ends of the beam, he found in the interior a knot or curl, but that on the surface of the stick the grain was straight and there was no appearance of the knot. A carpenter, placed on the stand as. an expert, was asked by plaintiff if it were possible for a curl to exist in a stick of spruce three by four inches and not be visible on the outside of the stick. This was excluded and the defendant excepted. Evidence showed that the timber was of good character and bought from reputable dealers. It was. conceded that in a quantity of such timber there will generally be found defective pieces. For this reason it is necessary to examine or test the timber before use. It was shown that the timber was cut into proper lengths in the defendant’s yard; that all pieces showing knots or curls were rejected. When the sticks were brought upon the ground to be put in place they were subjected to tests by striking them on the pavement and listening to the sound, and by trying their strength by jumping upon them or straining them between the spokes of the wagon wheels.

It may properly be conceded that the breaking of the stick, under the circumstances, proved its defective character. But to establish negligence on the part of the defendant it was necessary to go still further and to show that the exercise of proper care in inspection would have discovered the defective character of the stick, and that the want of such care was a failure in the performance of the duty of the master and not in that of a fellow-servant. Assuming that, had the question excluded been answered, the answer would have been that the curl would have shown on the surface, I do not see that this evidence would have aided the plaintiff. His previous witness had testified that there was a curl in the interior, and that there was no indication of it on the surface, but that oh the surface the grain was straight. The evidence excluded, if admitted, would have tended as much to discredit the statement that there was a curl in the interior of the beam as that there was no appearance of. it at the surface, and this statement was the only evidence to establish the appearance of any defect. But if it be assumed that there was evidence from which the jury might have found that there was negligence in the inspection or examination of the stick which broke, the question remains, was that negligence the negligence of the master %

The plaintiff contends that the case falls within the principle that a master is bound to furnish a reasonably safe place for his servants to work. If this rule is applicable to the present case, then it would follow that for the negligence of any servants to whom the master had committed the duty of providing a safe place, the master himself- would be liable. I think, however, that this is not the case of “ a place ” within the meaning -of the rule. As stated in Butler v. Townsend (126 N. Y. 105), doubtless, in one sense of the term, the employee must always be in some place, and, doubtless, also, the place, in a certain sense, is not safe if an accident occurs there., But the rule that the master must provide a safe place for work only applies where the work and the place are not connected; where the work is not in the construction of the place, as in the case of a mill, a factory, mine, ship, well, etc. In the present case the cross beam was not furnished for the purpose of providing the plaintiff a place to work, but as a part of the structure which he and the other workmen were engaged in erecting. The defendant might have provided a beam of such dimensions as to have been wholly unable to sustain the plaintiff’s weight; yet, if good in its character and sufficient for the purpose intended, there could have been no liability on the part of the defendant for that reason alone.' I do not mean to say that the defendant owed no duty to its workmen in the premises. If there was a latent danger, of which it had knowledge, it should have apprised the workmen. But the distinction I seek to impress is that here the beam was part of the structure, the common work upon which all the employees were employed, and the use of it by the deceased for support the mere incident. In the case of nearly all buildings or structures, it is the common practice to use the part of the structure that may at the time be erected, as a means to enable the workmen to obtain position, from which to prosecute the remaining Work. It makes a vast difference- in the question of the liability. of the master, whether, when a servant meets with an accident from a defect in the previous work, occurring through the negligence of a servant engaged iii its construction, the negligence is to be' deemed as arising from a failure to provide a safe place, or as negligence in the general enterprise, in the prosecution of which all the workmen are engaged. If the first, the master is liable, even though the negligence is that of a servant, because the duty is that of the master; if the second, it is the negligence of a co-servant, and the master is not liable for it. If the workman who placed the beams on the flanges of the elevated railroad had been negligent and improperly fastened them, and from this cause the accident to the plaintiff’s intestate had occurred, and if the case is one of a safe place, the defendant would have been liable. Still, I tliink such a proposition would hardly be contended for. Would it not be clear that, it was the negligence of a fellow-workman ? It is also clear from the same reasoning that the beam was not an appliance, the furnishing of which was the master’s duty. •

But though the case is neither one of a safe place nor of a safe appliance, the master had, unquestionably, duties that he owed to his employees. He was bound to supply a sufficient number of competent fellow-servants and safe and suitable materials for the work. This duty was not an absolute one, but the master was required to exercise reasonable care for these purposes. There is no allegation in the complaint, and no point seems to have been made on the trial, that the fellow-servants were incompetent or.insufficient in number. The master procured the timber from a reputable dealer; as a “ lot ” or quantity it was good, but, as generally occurs in the purchase of a quantity of timber, some sticks were found detective,' or with curls in them; and hence it was necessary to test the timber and that such parts of the sticks as had knots or curls should be cut off or rejected. We think that the master discharged its duty when it supplied a sufficient quantity of proper and suitable material; that the choice of material, the selection of sound beams,, the rejection of such beams or parts as were defective, work necessarily involved in the erection of structures of wood, were details of the. work and strictly' the duty of the fellow-servants. (Webber v. Piper, 109 N. Y. 496; Butler v. Townsend, 126 id. 105 ; Cregan v. Marston, Id. 568 ; Mahoney v. Vacuum Oil Co., 76 Hun, 579 ; Smith v. Empire Transportation Co., 89 id. 588.) It is here that the vital distinction occurs between the question of a place to work and that of a part of the work itself; a question of liability to employees who might use the structure when built, and the liability to those engaged in building it. It may well be that, after the construction of the trolley carrier, the defendant would be liable to any lineman who might be injured from its defective condition, whether occasioned by the negligence of the employees who put up the structure or those who selected the materials. Such rule does not apply to the plaintiff. In Murphy v. Boston & Albany R. R. Co. (88 N. Y. 146) the plaintiff’s intestate was killed by the explosion of the boiler of a locomotive.. The engine had been repaired in the defendant’s shop. The deceased was employed in that shop. When the repairs were finished the boiler was tested, and during the test the explosion occurred. It was held that the defendant was not liable, as for furnishing a defective machine. It was there said by Judge Andrews : “ The case of Fuller v. Jewett (80 N. Y. 46) is a distinct authority for the proposition, that if this locomotive had been sent out from the shop, and afterward exploded while in use on the defendant’s road, injuring the engineer or other servants of the defendant, the company would have been responsible. * * * In this 'case

Murphy was not, we think, a servant .in whose hands the locomotive was placed by the defendant for use, within the principle of Fuller v. Jewett and like cases. The locomotive was sent to ’ the repair shop in' order that it might be made fit for use. The mechanics in the repair shop, including the intestate, were employed for the purpose of repairing defective locomotives. The intestate and his co-laborers in the shop were engaged in the same department of service, worked-under the same control, and in the case in question the boiler makers and the other mechanics were employed to effect the same object, viz., the reparation of the ‘ Sacramento.’ It is true that the work was done in successive stages, and different parts of the work were intrusted to different j)ersons. * * * This claim

of the plaintiff’s counsel would make the master responsible to each successive, employee engaged on the repairs for any negligence 'of a co-employee, whose work was prior in point'of time, although done in effecting the common purpose in which all were engaged. This would, we think, be extending the liability of the master further than is warranted by the adjudged cases.” All that is thus said as to a case of repair equally applies to a case of original construction.

. The main reliance of the appellant is on the case of Kranz v. L. I. R. R- Co. (123 N. Y. 1). In that case the deceased, who was engaged in the defendant’s machine shop, was ordered to clean pipes laid under ground. A trench had been opened for that' purpose. While at work in the trench the earth cav.ed in and the deceased was- killed. I held at Circuit that as the trench was- opened for the purpose of laying bare the pipes, it was a detail of the work and the negligence was that of a co-servant. This decision was reversed by the Court of Appeals, who held the question was one. of. a safe place to work. .The case of Butler v. Townsend (supra) was subsequent to that of Kranz v. L. I. R. R. Co. (supra).- In the latter case the deceased was killed by the breaking of a defective plank in a staging or platform on which he was working. It was held that it was not a question of a place, but of an appliance; and that, as the master had furnished an adequate number of proper planks, the selection of a defective plank was the negligence of a fellow-servant, for which the master was not liable. The same learned judge wrote the opinion in each case. My error in the Kramz case was, therefore, not in my acceptance of the rule, but in regarding it as applicable to the case then before me. The present case is stronger than that of Butler v. Townsend (supra). There the staging was prepared either as an appliance or as a place upon which the servants were to do their work. Here the cross beam was provided for no such purpose. The evidence does not show that the deceased was instructed to use it to sustain his weight while he was boring the holes, nor whether he could have used some part of the elevated railroad structure for that purpose. It is often difficult to distinguish the case of a detail of the work from that of a place to work. In the cases cited from Hun are to be found two very instructive opinions on the subject written by Judge Bradley. It may be conceded that, under the authorities, the dividing line between the two classes of cases is not straight but wavering. We think, however, that this case lies well within the border line.

The judgment appealed from should be affirmed, with costs.

All concurred.

Judgment and order unanimously affirmed, with costs.  