
    Rudolph Heiser, Respondent, v. The Cincinnati Abattoir Company, Appellant.
    First Department,
    December 16, 1910.
    Master and servant — negligence — injury from skids used to unload merchandise — such implement is . not “ way ” within Employers’ Liability Act — evidence — use of different style of skids by others — erroneous charge.
    Skids consisting of planks fastened by crosspieces which were placed by employees between a car and the platform of a warehouse for the purpose of unloading merchandise from the ear are not “ways” within the meaning of the Employers’ Liability Act,- but on the contrary, are appliances furnished for the use of servants. The master is not obliged to furnish the best known appliances, but merely such. as are reasonably safe and suitable — such as a prudent man would furnish if his own life were exposed to the danger that would result from unsuitable or unsafe appliances.
    Hence, where an employee, having helped to place such a skid as a detail of his work, was injured owing to the fact that fellow-servants in pushing a truck along the skids, which were secured against movement by a cleat on the plat* form of the warehouse, so operated it as to cause one of the skids to fall, the master is not liable where the skids had been used for many years without accident and were similar to those used by others engaged in the same business and were reasonably safe and proper.
    In an action to recover for injuries .so caused it is error to receive evidence that another company used a different kind of skid fastened by hooks, where it is not shown that such skids were in general use, but on the contrary it appears that those used by the defendant were of the kind in general use and had been used for many years without accident.
    
      In such action it is error to refuse to charge that such skids are not a “ way ” within the meaning of the Employers’ Liability Act, and that if an employee is injured by the negligence of a fellow-servant in using such appliance it is one of the risks of the employment.
    So too it is error to charge that if the master had failed to provide a safe skid, the fact that the negligence of the plaintiff’s fellow-servant contributed toward the accident is no defense.
    Appeal by the defendant, The Cincinnati Abattoir Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of May, 1910, upon the verdict of a jury for $8,320, and also from an order entered in said clerk’s office on the lltli day of May, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      Frank V. Johnson of counsel \_F. Glyde Sherwood with him on the brief], for the appellant.
    
      Henry G. K, Heath, for the respondent.
   Clarke, J.:

The plaintiff had been for three years in the employ of the defendant as a “ beef lugger.” Defendant’s place of business was at 531 West street. A row of warehouses extends along the street. In front is a platform about three feet high and five feet deep. Upon railroad tracks laid in the streets freight cars are delivered to the warehouses from time to time. Between the edge of the platform and the side of the car the space was ten or twelve feet. There was an overhead rail on which a pulley with a hook attachment ran. When a beef car came in a skid was extended from the car to a horse placed in the street. Then the quarters were attached to the hook on the overhead trolley, and, so hung, were shoved across the street and along the platform to the appropriate entrance into the warehouse. At certain times the cars contained other kinds of provisions, hams, etc. When this was the case two skids were used ; each skid consisted of four one and one-half inch planks each a foot wide, fastened under each end by crosspieces, making a total width of four feet, and six and one-half feet in length. The end of one of these skids rested on the top óf the horse, which was four inches wide, giving it two inches .of support, the other on the platform in front of the warehouse, where a cleat was nailed to keep it from slipping, The other skid, resting with one end on the horse, projected into the car. At this end in the car was placed a loose piec,e of plank so that the wheels of the truck could the more easily run up on the gangplank or skid. This truck was oblong, with open planked sides, running" on two side wheels, with a moveable wheel at each end. Into it were put the hams and other provisions. It would then be shoved.and pulled across this gangway to the platform, and thence to the proper opening in the warehouse. •

■ On the morning in question the gangplank had been laid as indicated by the members of plaintiff’s gang, of which he was in charge, and the plaintiff and two other men were engaged in unloading the car. They had been at work unloading from five to seven o’clock in the morning. The plaintiff testified: “ I was in front on the platform of the car when the. accident happened. I was wheeling the truck, and two men, Mr. Foote, and Mr. Whitty, were behind pushing. When we started pushing the car out on the platform, the right-hand wheel of the truck struck the corner óf the plank and pushed them a little bit sideways, about an inch, and then stopped ;. and the two men then pushed the truck back, and gave it a push, and struck the plank in front, and pushed it off; and the plank and I went down and the truck after. * * * At that time I was only steering the car. Before I had gone upon this platform to do work I had made an inspection of it; I saw it was put up like always. I saw that the nails and cleat were put in.” This loaded truck, weighing from 1,200 to 1,400 pounds, fell on ' him, and lie received the injuries complained of.

It affirmatively appeared, without contradiction, that these skids which were being used at the time of the occurrence, had been, used for at least three or four years by the defendant’s employees without accident, and that similar skids had been in use for similar purposes by other concerns in that locality engaged in similar lines of business. The court submitted to the jury the question whether the defendant furnished the plaintiff with a proper i;unway, whether he himself was guilty of negligence contributing to his injury, .and whether he understood and assumed the risks incident to the use of" these skids. Defendant contends that plaintiff failed to show that. the accident was brought about by any negligence on the part of defendant, but that, on the other hand, the negligence, if any, which caused the plaintiff’s injury was that of himself and his fellow-workmen ; that the placing and fastening of the horse and planks, constituting the materials for this runway, were details of the work devolving upon the men themselves and not upon the master; that the case does not come within the provisions of the Employers’ Liability Act (Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 200 et seq., revising Laws of 1902, chap. 600), and the question whether or not the plaintiff assumed the risk, which was perfectly open, obvious and apparent to him, was one of law; and that for these reasons the complaint should'have been dismissed; and further, that the court erred in its rulings in the admission of evidence over .the defendant’s objection and exception and also in charging the jury, and that the damages awarded are excessive.

The defendant claims .that the evidence of the plaintiff and his witnesses shows without dispute that his injury resulted, not from any negligent act of a superintendent, as no superintendent or other person higher in authority than the plaintiff himself was present on the morning of his injury; but the accident was caused by the slipping of the skid either because it was not originally set properly and securely fastened in place, or because of the negligent manner in which it was afterwards used by the men themselves; and reliance is placed upon Nappa v. Erie R. R. Co. (195 N. Y. 176) for the proposition that these skids so placed from time to time as they were needed by the employees themselves, did not constitute a way under the provisions of the Employers’'Liability Act. The plaintiff cites Trentacoste v. Cronin (132 App. Div. 907) and Knezevich v. Bush Terminal Co. (127 id. 54).

In neither of those cases did it appear that the men themselves had erected the runways as temporary and movable aids in the performance of their work, but in each case the runways were erected without their participation, had an :element of permanency, and were erected by the master and furnished in place for the work in hand.

In Nappa v. Erie R. R. Co. (195 N. Y. 176) the action was brought under the Employers’ Liability A ct (Laws of 1902, chap. 600). Plain'tiff was a freight handler and had been engaged in that obcupation at the place where he was injured for five years or more. The freight cars varied in width, the widest leaving a space of ten inches between the outer edge of the platform and the floor of the car, the narrowest sixteen inches.- The car floor was four inches higher than the platform. In the conduct of this work there was employed a skid or running board, -about three feet square, made of iron; one end thereof was placed on the floor of the freight car and the other on the platform. It was customary, at the end of the skid resting on the.platform, to nail a piece, of wood or board, about five inches long and two inches thick, called a cleat, to hold it in place. There were several men in and about the freight house called coopers, whose duty it was, when called upon, to place the cleats in position. These coopers were ordinary workmen, holding no other position; they were supplied with hammer, nails and cleats, and subject to call when needed. In the event of the cooper not. responding to the call, cleats were kept, along the floor of the freight house within easy access, so that any workman could place them in position. The skid was moved by the workmen from one car to another throughout the day, and was with the trucks and other necessary implements, one of the regular tools employed to unload the cars. About the time of the accident the plaintiff and his fellow-workmen were engaged in removing barrels of sugar from the car to the freight house. “ The plaintiff just-prior to the accident, had absented himself to get a drink of water. On returning he found the skid in position and went to work immediately, with one foot on the platform and the other on the skid. Very soon thereafter, while handling a barrel of sugar, the skid slipped and plaintiff’s leg was caught between the barrel and the platform, inflicting the injury of which complaint is made. The plaintiff testified that, he did not observe, what was the fact,-that the cleat was not in position when the accident happened. Considerable evidence was introduced as to who was responsible for the failure to place the cleat in position during the brief absence, of the plaintiff. In the view we take of the legal situation this question is immaterial. * * * Subdivision. 1, By reason of any defect in the condition of the ways, works or machinery connected with or used in the business of the employer, which arose from or had not been discovered or remedied, owing to the negligence of the employer or of any person in the service of the employer, and entrusted by him with the duty of seeing that the ways, works or machinery were in proper condition.’ It is argued by the counsel for defendant that section 1, subdivision 1, of the Employers’ Liability Act, under which this action is brought, is merely declaratory of the common law in this State. The counsel for plaintiff: states in' his brief that it may be conceded that the Employers’ Liability Act of this State makes no change in the common law with respect to the physical conditions or acts which create a liability or out of which a liability may arise. It follows that the cases in this and other jurisdictions, prior to the enactment of the Employers’ Liability Act, are applicable as to the liability of the defendant. The question of law presented upon the undisputed facts is as to whether the moving of the skid from car to car and securing it with the cleat was a detail of the work or a part of the ways, works or machinery under the Employers’ Liability Act. * * * We are of opinion that the skid and cleat, moved by the workmen from car to car, were no part of the ways, works or machinery under the Employers’ Liability Act, nor. of the safe place to work at common law. They were a part. of the regular tools and appliances furnished to the freight handlers, and if one of them was injured by the negligent act of another in using the same, it would be one of the risks of the employment, imposing no liability upon the master. Lord Esher, Master of the Rolls, in Willetts v. Watt & Company (L. R. [1892] 2 Q. B. Div. 92, 98), thus defines the word way ’ as used in the English Employers’ Liability Act: ‘ The course which a workman would in ordinary circumstances take in order to go from one part of a shop,' where a part of the business is done, to another part where business is done, when the business of the employer requires him to do so, must be regarded as a K way ” within the meaning of the statute.’ The skid in the case at bar is not placed in position for workmen to walk over from the floor of the car to the floor of the freight house ; it is as an incline over which to allow articles of freight to slide or roll, guided, indeed, by the freight handler, who stands with one foot on the platform and the other on the side of the skid. The definition of Lord Esher above quoted renders the meaning of the word c way’ clear and satisfactory. A workman in a large manufactnring establishment being called upon, in the discharge of his duties, to pass from one portion of the building to another,, possibly through places that are ill-lighted, is entitled to have the place or way ’ over which he is bound to pass, safe. It seems an unreasonable -and unnatural construction to hold that an ordinary skid, used in unloading freight cars, a mere tool or implement, can be regarded under the statute as a ‘ way.-’ ” The court then goes on to cite Hudson v. Ocean S. S. Co. of Savannah (110 N. Y. 625) and McCampbell v. Cunard Steamship Co. (144 id. 552), both skid cases, and proceeded: The principle established by these authorities and others that might be cited is not embraced within or affected by the Employers’ Liability Act. The defendant was entitled to have the court charge, as his counsel in substance, requested, that the use of the skid and cleat was a detail of the work and not. covered by the Employers’ Liability Act.”

If this definition of the word “ way ” is settled, then the skids here used were not a way but an appliance, and come within that class of simple and ordinary appliances illustrated by Marsh v. Chickering (101 N. Y. 396) where a ladder was in question. “ The rule is that the master does not owe to his servants the duty to furnish the best known or conceivable appliances; lie is simply required to furnish such as are reasonably safe and suitable, such as a prudent man would furnish if his'own life were exposed to the danger that would result.from unsuitable or unsafe appliances. (Burke v. Witherbee, 98 N. Y. 562; Shearm. & Redf. on Neg. §, 92.) The defendants had procured a ladder which ordinarily would be regarded as safe for the purpose for which it was used. The plaintiff had used it for a long time witliout any accident or danger, and on the very night of the accident it had been placed in position and used several times successfully. That it failed at last for any reason does not establish that it was unfit for use. It might, perhaps, have been more perfect if it had had hooks and spikes, but this improvement was not absolutely essential to relieve the defendants from liability. It was enough that it was reasonably safe and suitable within the rule cited, and under such circumstances an action will not lie.”

I think it was error to admit the proof in reference to the Manhattan Company’s skids. Plaintiff was permitted to prove that the. Manhattan Company used a different kind of skid, fastened by hooks, and claimed to be safe; that for a time that company had allowed the employees of the defendant the use of these skids but had withdrawn that permission. The purpose was to show that the defendant could and should have procured a safer appliance than - that used and furnished by it. It was not proved that the kind used by the Manhattan Company was in general use, but it was proved on the contrary that the kind used by the defendant was in general use and had been used for many years without an accident. While it would have been competent to have shown that these skids were unsafe, and in what respect, and also competent to show the kind of skids in general use by like concerns for similar purposes, I do not think it was competent to show a particular kind used by one house. That must follow from the general rule cited in the Marsh Oase {supra), that the master does not owe to his servants the duty to furnish the best-known or conceivable apparatus. If he is not so required, it is immaterial that some, person somewhere has devised or used a later and better appliance.

The learned court refused to charge that skids or planking composing the runway which is constructed and moved by the workmen from one. car to another as the work of unloading such cars, proceeds, do not constitute a way ’ within the meaning of the Employers’ Liability Act, but are appliances, implements or tools furnished for the performance of the work, and if one of the employees is injured by the negligence of another in the using of such appliance or implement, it is-one of the risks of the employment and imposes no liability on the employer.” Then the plaintiff requested: I ask your honor to charge that if'the defendant had failed to provide a safe runway for the transportation of" provisions from the car platform, the mere fact that the negligence of the plaintiff’s fellow-servants contributed towards the accident is no defense to the defendant.” The court so charged and defendant excepted. I think the refusal to grant the defendant’s request and charging the plaintiff’s was error.

The appliances furnished were simple in construction, with no hidden defects, had been used for many years without accident, were similar td those used by others engaged in the same business, and were reasonably safe and proper. There was no obligation to use the best, the safest or the most recent device for doing the same work. These appliances were temporary in their nature, and put up in each instance by the gang which thoroughly knew its own work ; according to the testimony of the members- of it, no directions were given by anybody, except to point out the car to be unloaded, and. they then would adjust the horse, the skids, etc. Plaintiff himself was the one in authority and the highest employee- present and himself inspected the erection, was satisfied that it was as it always had been and after such inspection went to work thereon. The evidence shows that the accident did not occur through any weakness or defect of material, but solely from the manner of adjustment, and the- way in which the employees, including plaintiff, handled the truck.

It follows, therefore, that the judgment and order should be reversed and a new trial ordered, with ■ costs to the appellant to abide the event.

Ingraham, P, J., McLaughlin, Laughlin and Scott, JJ., concurred. .

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  