
    Hannah Smith, as Administratrix, etc., Resp’t, v. Empire Transportation Company, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 16, 1895.)
    
    1. Master and servant—Fellow.
    The second mate, acting as the foreman of a gang working on a vessel, is their fellow-servant, where they remove the support of a piece of flooring, which in consequence falls on one of the workmen.
    2. Same—Risk.
    Where the management, in process of the performance of the work, necessarily rests in the care, discretion and judgment of those engaged in the service, or of their foreman, the consequences to the workmen are-within the hazards incident to the service, and which are assumed by them when they enter into it.
    3. Same—Safe place.
    The fact that the place where services are performed may become unsafe in the process of the work, and resulting from the manner in which it is done by coemployes, furnishes no ground to charge the master with liability for physical injuries occasioned by the unsafe condition thus produced.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    
      John (7. Milhurn, for app’lt; Maclcey & Draper, for resp’t.
   Bradley, J.

The plaintiff’s intestate, while in the service of the defendant, in March, 1894, received an injury resulting in his death. He and others were engaged in the hold of the defendant’s steam propeller in the port of Buffalo. The purpose of the work was to relay the wooden floor, which at the close of the season of 1893 had been taken up, and. in sections, placed against the stanchions, extending from the keelson to the main deck in line along the center and the whole length of the midships —100 feet. The distance between the stanchions was a little less than four feet, except at the hatch, where two of them were separated by the distance of eleven feet and seven inches at the floor, and so inclined that at the deck they were seven feet and seven inches apart. The wooden flooring was in thickness a little more than two inches,, made of oak and pine lumber, and was in sections eight feet in length and five and eight-twelfths feet in width. When laid, the)r made three courses on each side of the line of stanchions. As they were placed standing when taken up, all the sections had the-direct support of the stanchions, except those sections which were at or under the hatch, where the distance between the stanchions was greater than the length of the sections. There they were placed against the ends of the others, which overlapped the stanchions on each side of this wide opening. The workmen had scraped and painted the iron surface of the water tank to be covered by the floor on the starboard side, except a space along near the stanchions, which had been occupied by the sections standing there. They had put down the two other courses of the floor sections, and laid upon them the sections to constitute the course adjacent to the stanchions on that side. The plaintiff was engaged in painting the uncovered portion of the iron tank under the hatch on the starboard side, when a section of the floor standing on the port side of the line of stanchions fell upon him, producing the injury in question. Some of the workmen were then engaged in removing the sections standing on the port side of the line of stanchions, and laying them in the floor on that side, and it was-on the removal of one of them that the section fell on the plaintiff. As the one that fell had only the support of the overlap of others resting against the stanchions, the fall of it was evidently directly attributable to the removal of one or more of the sections standing on the port side. The evidence of the only witness who gave any description of the occurrence was that, after they got through on the starboard side, they went over to the port side. “ There were-some sections standing up under the hatch, and these sections were lapped so as to hold them secure. After we had taken five or six —something like that—down, and laid them on the port side, we took hold of another one that was standing there, and put it in its place, and somehow or another this section fell over upon Smith.”'

The only question requiring consideration is whether there is any support in the evidence for the charge of negligence on the part of the defendant. When the decedent went to work for the defendant he assumed the ordinary hazards incident to the service, which included the consequences of the negligence of his co-employes. The second mate, who was foreman of this work in which they were engaged, was the co-employe of the other workmen. Mahoney v. Oil Co., 76 Hun, 579; 58 St. Rep. 279, and cases there cited. The trial court so held, but submitted to the jury the question whether or not the defendant was chargeable with negligence for not furnishing a safe place for the decedent to do the work which be was employed to perform. The duty of the defendant was to use reasonable care to that end, and, if it appears that the injury was attributable to the failure of the defendant to do so, the charge of its negligence is supported. When the decedent-went into the defendant’s service in the hold of the steamer the sections of the wooden flooring were standing on either side of the line of the stanchions. The place appeared to be, and in the then situation was, entirely sofa The safety under the hatch on the starboard side near the line of the stanchions may have been reduced by the removal of the standing sections from that side. But the opposite section on the port side, which afterwards fell, was not dependent upon them for support. It remained standing after they were removed. The disturbance which caused the section to fall was occasioned by the removal of one or more of the sections on the port side, which in some manner contributed to support and sustain it in its position. This was the act of the workmen, and if the fall of the section was the result of want of their due care, or of that of either of them, the negligence was that of the co-employe of the decedent, for which the defendant is not responsible to the plaintiff. This was the view of the trial court, and the jury were instructed that if they found that the workmen used such care, and that the section fell by reason of the manner in which it was placed there, the question whether it was negligence on the part of the defendant to leave it where and as it was placed was for the jury to determine, and, if they found that fact in the affirmative, the plaintiff was entitled to recover, unless the negligence of her intestate contributed to the injury sustained by him. It is quite difficult to see in the evidence any support for the proposition that the defendant was chargeable with negligence for want of safety in the hold of the steamer where the decedent was engaged in the work which he was employed to perform. The flooring was taken up, and, in sections, placed lengthwise along the line of stanchions, as it' usually had been at the close of the season of navigation, to permit it to dry out, and to enable the defendant to clean and paint the iron surface beneath it preparatory to fitting the vessel for use the coming season. The manner in which the sections were placed on either side of the stanchions, and the support those located under the hatch had to maintain them in position, were apparent to the workmen who were engaged in removing them and placing them in the floor. They could not, with the exercise of any reasonable care, fail to observe that in the space under the hatch the sections were dependent for support upon the overlap of the adjacent ones, which rested against the stanchions; and i't is evident that the disturbance or removal of that support by the workmen in the service 'caused one of them to drop from its inclined standing position. The unlocking of the safety in condition as it existed when the decedent went into the service arose from the manner the work in its detail was performed by the co-employes of the plaintiff’s intestate. These is no question about the competency of the workmen and sufficiency in number to do the work. The manner of doing it was intrusted to them. The management, in process of the performance of the work, necessarily rested in the care, discretion and judgment of those engaged in the service, or of their foreman. The removal of the support of the section in its place, and its fall, with the unfortunate result, were caused by the manner in which the workmen conducted the work in which they were engaged. This is eviident from the fact that it was supported on the port side of the line of stanchions after the sections were removed from the starboard side, and it could be thus supported only by the overlap of the sections standing against the stanchions. And, so far as appears by the f-acts derivable from the evidence, the consequences to the decedent were within the hazards incident to the service, and which were assumed by him when he entered into it. Cullen v. Norton, 126 N. Y. 1; 36 St. Rep. 359; Hudson v. Steamship Co., 110 N. Y. 625; 16 St. Rep. 416; McCampbell v. Steamship Co, 144 N. Y. 552; 64 St. Rep. 246. The fact that the place where services are performed may become unsafe in the process ■of the work, and resulting from the manner it is done by co-employes, furnishes no ground to charge the master with liability for physical injuries occasioned by the unsafe condition thus produced. Loughlin v. State, 105 N. Y. 159; 6 St. Rep. 826; Cregan v. Marston, 126 N. Y. 568; 38 St. Rep. 428.

So far as we are advised by the evidence, the danger of accident was not within reasonable apprehension as the flooring stood when the work was commenced, and the accident which followed could ■not occur otherwise than in the process of the work of removal of the means of support furnished by some of the sections to others beneath the hatch. Until this was done by the workmen, there was no want of a reasonable degree of safety. The evidence does not show any existing condition inherently dangerous in the •combination of the sections of the flooring, or a condition from which danger in the course of work could reasonably be apprehended from the exercise of reasonable care in the removal of those sections from the positions in which they were to the places designed for them to constitute the floor of the hold of the vessel. The proposition, therefore, upon which a master may be chargeable to his employe, by reason of his failure to furnish him a safe place to work, does not seem applicable to the present case as presented by the evidence.

In the cases to which our attention is called by the plaintiff’s counsel the unsafe conditions were not produced by the performance of the work in which the employes were engaged. In McGovern v. Railroad Co., 123 N. Y. 280; 33 St. Rep. 416, the defendant failed to use the care required of it to see that the place where the servant was put to work in the elevator was then safe, when in fact it was otherwise. The same may, be said of Stuber v. McEntee, 142 N. Y. 200; 58 St. Rep. 455, where the plaintiff’s intestate was employed to work in a trench, which was in an unsafe condition for the service. Similar in its nature was Kranz v. Railway Co., 123 N. Y. 1; 33 St. Rep. 46. And for a like reason recovery against the defendant was supported in Pantzar v. Mining Co., 99 N. Y. 368. It there appeared that the place where the plaintiff was at work for the defendant in the mine of the latter was rendered unsafe by an insecure mass of rock in an overhanging cliff, by the fall of which he was injured.

The conclusion is that the verdict is not supported by the evidence.

The judgment and order should be reversed, and a new trial granted; costs to abide the event.

All concur.  