
    Dennis Guilmartin, Respondent, v. The Solvay Process Company, Appellant.
    Fourth Department;
    November 14, 1906.
    Master and servant—oiler injured while repairing machinery under direction of shift foreman — character of work determines when foreman acts as fellow-servant — details of the work-—extraordinary accident. ' .
    In an action under the Employers’ Liability Act to recover damages for personal inj tifies, it appeared' that the.plaintiff was an oiler in charge of certain machinery in a factory; that the belt connecting a countershaft with the main shaft came .off the wooden pulley on the main shaft, and that when the plaintiff and another oiler, by direction of the shift foreman, attempted to fix it, it doubled around the wooden pulley on the main shaft and drew tight, loosenéd'the pulley and stopped it so that the Shaft revolved inside the pulley. It was impossible to stop the main shaft without shutting down the whole plant, and the shift foreman liad no authority todo this. However, he directed the engineer to slow down, and, with the plaintiff and. two other workmen, pulled the belt out so that the lacing could be cut, and then he ordered the plaintiff to go over. to the shaft and throw the belt off. In attempting to do this the loose end wrapped around one of the plaintiff’s legs and drew him against the shaft. It ' was part of the duties of th§ 'gbift ■ foreman to ftgsigt in handling the belts' ftntl other mscbmery, '
    
      
      Held, that the accident was caused by the separation of the belt which Weis accomplished by the efforts of the shift foreman and the other workmen acting as coemployees;
    That the liability of the master does not depend upon the grade of the servant with whose negligence the plaintiff seeks to charge him, but upon the character of the work in the performance of which the injury arises;
    That the work of throwing off the belt which the plaintiff was directed to do and the attempt to extricate the belt without stopping the machinery were • mere detail^;
    That the accident was unusual and extraordinary and one which the master could not reasonably have anticipated. *
    The complaint should have been dismissed as matter of law.
    Spring and Kbuse, JJ., dissented, with opinion.
    Appeal by the defendant, The Solvay Process Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 16th day óf May, 1906, upon the verdict of a jury for $12,500, and also from an order entered in said clerk’s office on the 17th day of May, 1906, denying the defendant’s motion for a new trial made upon the minutes. ■ ‘
    
      Louis L. Waiters, for the appellant.
    
      A. Lee Olmsted, for the respondent.
   Nash, J.:

The action was brought under the Employers’ Liability Act (Laws of 1902, chap. 600) for injuries alleged to have been caused by the negligence of the defendant.

The defendant is a manufacturing corporation, having its place of business in the village of Solvay, Onondaga county, engaged in the manufacture of soda ash and chemical products.

1 The plaintiff at the time of the accident was in the employ of the defendant. He had worked for the defendant fifteen years and for ten months before the accident as oiler in that part of the defendant’s works known as the densification department. His duties as an oiler were tó oil the shafting, keep the boxes through which the shaft runs full of oil, so they would liot burn, and put the belts on 'and take them off. He had the oiling and charge of the machinery in the top of the building. He was working on an eight-houv-aday' shift, from eleven o’clock at night until seven the next .morning. His work at that time was in the dense soda .department. In this department there is a straight line engine, located at the north, end of the building, on which are two driving wheels, connected by a belt with the north end of the main; shaft extending north and south through the building, about twenty or thirty feet .above the engine. .The shaft ¡at the point where it is connected with the engine. is between five and six inches in diameter and á foot and a half long. # A six-inch belt ran from the wooden pulley over to a countershaft about fifteen feet east of -the main shaft and five or six inches higher than the shaft. Upon the countershaft which ran parallel to the main shaft Were two three-foot wire pulleys on which the belt ran, one a loose and the other a tight'pulley. When the belt'was on the tight pulley that Caused the countershaft to revolve.

There is a platform .consisting of three or four planks running ■along ón both sides of the main shaft for the men to walk upon, " extending over to the countershaft, so that there was a floor between the two shafts. The- main shaft is about four inches above the plank of the platform underneath..- The belt extending from the -wooden, pulley on the main shaft to the pulleys on the countershaft, passed, the upper side of it over the platform and the under side • beneath it. The belt was a leather belt sewed together by means. of a wire lacing on each end which interlocked and a piece of rawhide passed through. When pressure came on the. belt it pulled the énds apart, so that the rawhide held them together. To take the belt apart it was necessary to púll the-rawhide out of . the wire lacing. The engine operating-the main shaft also operated the soda furnace. A shut down of the furnaces tends to cool them and crack the brick work, The main- shaft was operating the machinery connected with the apparatus room. It. was also connected with machinery in the packing room. There were conveyors which if stopped suddenly would become plugged with soda and give trouble, the supply of bicarbonate to the dryers would be cut off, necessitating the services of a large .gang of. men, arranged for beforehand in case the engine is required to be shut down. The shift foreman, except in the case of accident, had no power to shut down without permission from á superior officer. The defendant had made and promulgated a rule which was known to the plaintiff and to the shift foreman, which provided that, “ Belts must not be thrown off while in run if there is anything near enough to the pulley for the belts to catch on.” On the night of the accident Michael Mullin was the shift foreman. He had been in the defendant’s employ twenty years and was concededly competent. On his shift that night there was a head foreman, James Fogarty, whose position was in the apparatus room, in the same building. He was in charge of all the work in the soda ash department. ■ Mullin was required to go to him for authority to shut the -engine down. On the night of the accident, which occurred about midnight, the belt extending from the wooden pulley to the countershaft stopped running. There is no claim that the stoppage of the belt was caused by any negligence of the defendant. The plaintiff, in his testimony, describing the accident, says that when his attention was first called to the belt he was at the south end of the main shaft, that Mullin called his attention and motioned toward to the north along the main shaft. The plaintiff walked along down the platform and saw that the belt \tas off the wooden pulley on the main shaft. The belt was between the wooden pulley and an iron patent box, which was five or six inches from the pulley. On the countershaft the belt was partly on the loose pulley and partly on the tight pulley; the main shaft being in operation at its usual speed. Mullin was down on the floor below at this time.' He said : “ Put that belt on, boys.” Pever, another oiler, came up from the floor below. The plaintiff, giving an account of the accident, testified: “Mr.,Pever came there. When he got there I told Mr. Pever to throw that belt off the iron pulley on the countershaft so we would get a little slack to bring the belt over the wooden pulley. As soon as he threw it off, as soon as he gave the»slack, the belt flung onto the floor, doubled around the wooden pulley, pulled it out of my hands. I had my hand ahold of the belt when he was taking it off from the pulley. I took hold of the box to raise it off from the shaft. When he gave slack off the iron pulley over on the. countershaft I don’t know whether he dropped it or whether it was taken out of his hand. It slung right onto the floor and came right up, doubled around the pulley. The pulley stood still on the shaft. It pulled the belt tight from the countershaft to the main shaft. Held it tight so the belt and wooden pulley stqod still. The main .shaft went revolving in the wooden pulley, * * * There was three doubles of the belt on the pulley. It wound right underneath so that two belts were wound right fast over the wooden pulley. •* * * I went down and told the foreman, Mike Mullin. I told him that the pulley was loose, that the belt had gone around it. He said, Let me see.’ He went along right up stairs. I went with him. When he went up he'said, £* . * * It is burning.’ I said, ‘ It smokes a little:’ I asked him how he was going to shut down, if he was to shut down to get the belt off and fix the pulley. He went down stairs. He said nothing in reply. * * * While lie was gone I stood right near the wooden pulley. He turned back and brought the fireman with him. He came back onto the platform. T could not say what the fireman’s name is. We used to always call him John. * * * During the time that I was. waiting for the foreman to come back Mi1. Pever stayed there with me too. Before they did get back I asked him if he would go down stairs and shove the belts on the loose pulley. Asked Mr. Pever,. the other oil man with me; he was working down on the. bottom floor. * * * • Then Muhin and John the fireman and Pever came back. They were all four on the platform together. Mr. Mullin, he says,.£ Boys, cut that belt.’ He. said, £ that pulley is burning.’' ‘ All hands,’ h'e said, £ get hold of it-’ ' £ Get hold of it,’ he says, £ and pull the rawhide out.’ I took, hold of the belt and he took hold of It. * * * John and Steve, the other oiler, and the fireman took hold of it. All four took hold of the belt. Me and Mullin- and the fireman and tlie other oiler. * * * Mullin was on the other side of the belt, next to me. John was on tlie other 'side with- the foreman, Mr. Mullin. On the same side of the belt, the foreman was on. lie was tp the east side of tlie fitting piece. I was on the west side of it. ' Steve was on my side, on the east side of the fitting piece. In that position we all Took'hold of the belt together. ' Me and the foreman Mr. Mullin pulled east, Steve and John, pulled west, so that relieved the fitting piece. They took pliers,. I think Steve took them.' He used to always carry them. They kept them down stairs, but he,kad them that night in'his pocket. He took hold of the rawhide to pull it out. He could not get it out very handy, Foreman Mullin said, 1 Get out your knife and cut the belt.’ I said,- I have not got any knife,’ He said, you ought to have a knife.’ So in the meantime they pulled the rawhide out. * * * The foreman ordered me across over the shaft; he said, 6 Get over that shaft, Gol darn you, get, go on, get over the shaft and throw that belt off.’ He indicated the main shaft. I went over towards the shaft. When I was going over the plank I left the right foot on the east side of the shaft: Raised my left foot to put it over the shaft. At that time the belt got around the right foot, pulled me right into the shaft. The belt we were cutting caught around my right leg. I was thrown on the back, right back on my back on the platform. Then I was taken around the shaft,” taking plaintiff’s leg off above the knee.

He further testified that during the time he was employed by the defendant he had not seen a belt caught in that way.

When Mullin went downstairs he ordered the engineer to slow down. The engine was slowed down as slow as it could be run with safety without entirely shutting down.

The court submitted to the jury the question whether within the meaning of the Employers’ Liability Act, Mullin, the shift, foreman, in the work of extricating the belt, was exercising superin-, tendence; or whether at . the time of the accident he was a coemployee, engaged in a mere detail of the work, and whether or not Mullin was negligent in not stopping' the machinery.

There is substantially no dispute as to the manner in which the accident occurred. The witnesses differ somewhat as to some of the minor details, but as to essentials they are in accord.

Before the enactment of the Employers’ Liability Act, it was held in Crispin v. Babbitt (81 N. Y. 516) that The liability of a master for an injury to an employe occasioned by the negligence of another employe, does not depend on the grade or rank of the latter, but upon the character of the act, in the performance of which the injury arises. If the act is one pertaining to the duty the master owes to his. servants, he is responsible to them for the manner of its performance; but if the act is one pertaining only to the duty of an operative, the employe performing it, whatever his rank or title, is a mere servant, and the master is not liable to a fellow-servant for its improper performance.”

In that case “ B. carelessly let on steam, and plaintiff was injured. The court charged that although B., as agent or superintendent, represented and stood in the place of defendant, lie- did so only in respect to those duties which defendant had confided to him as • such. Defendant’s counsel then requested the further charge that as to any other acts dr duties performed by B.in and about defendant’s works or business, lie was- not to be regarded as defendant’s representative, but as a fellow-servant with plaintiff. This the court refused to charge,.but left it as a question of fact to the jury. Held, * *' * . that it was a question of law, and the court should have charged as requested,”

In McCosker v. Long Island Railroad Co. (84 N. Y. 77), another case in which 'the rule was applied, McCoslcer, plaintiff’s intestate, “ was employed in the yard of defendant at H. P. to assist the yardmaster L.; lie was hired by L., and was under his control and supervision. While McC. was engaged,*■ by the direction of L., in ’ attaching a damaged car standing on a track in the yard to anothefear, L. negligently signaled to an engineer-whose train stood upon the track, to hack the train, which he did, without signal or warning, and in consequence McC. was crushed between the cars, receiving injuries causing his death. In an action to. recover ■ damages, held, that the yardmaster was to" be deemed a fellow-servant with . the deceased as to all acts done in theránge of the common employment, except those done in the performance of' some duty which .defendant owed to its servants; that tlie act in question was not/ one of that character,' and that, therefore,,defendant was not liable,”

The Employers’ Liability Act lias not changed the rule." It was held in Quinlan v. Lackawanna Steel Co. (107 App. Div. 176) that the Employers’ Liability Act must be construed to create a liability against the employer for the acts of a superintendent only when the superintendent is engaged in the act.of superintending.”

In the case at bar, Muffin, the shift foreman, the plaintiff, Bever, the other oiler, and the fireman John were all acting together, engaged in the act of extricating the belt, all four participated in the work of separating the belt; all took hold- of the belt together, two on either side; when it parted Muffin directed the plaintiff to get over the shaft and throw the belt off, a detail of the work. ' It was part of the duties of Muffin, as shift foreman, to assist in the work of handling belts and other machinery about the room. .The accident'was caused, by the separation of the belt. That was doné by Muffin, the foreman, plaintiff, and the two other employees acting together as coemployees.

The attempt to extricate the belt without stopping the machinery was a mere detail of the work. (Foster v. International Paper Co., 183 N. Y. 50.) .

The conceded facts bring the case within the rule as held in Crispin v. Babbitt.

It may be held further that the accident was one which could not reásonably' have been anticipated,' in which case negligence cannot be attributed to Mullin:

The injury to the plaintiff was occasioned not by his attempt to step over the shaft. It was caused by the end of the belt, which in some unexplained maimer got around his leg and pulled him into the shaft; an unusual and extraordinary occurrence, not within the former experience of the operatives or of any witness called as an expert at the trial, characterized by the court as a singular catastrophe; something that could not reasonably have been anticipated, and, therefore, within the class of cases in which it is held' that the master is not liable. (Fasani v. N. Y. C. & H. R. R. R. Co., 109 App. Div. 404.)

For these reasons we conclude that there was no question for the jury, and that as matter of law, upon the evidence in the case, the complaint should have been dismissed.

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

All concurred, except Spring and Kruse, J J., -who dissented in an opinion by Kruse, J.

Kruse, J. (dissenting):

.' The plaintiff’s right leg was torn from the body below the knee while he was attempting to comply with the directions of the defendant’s foreman, who was • in immediate charge of the work which the plaintiff was attempting to do.

The plaintiff was at work in the defendant’s factory. A belt ran from the main shaft to a countershaft. The belt had run off the pulleys. While an attempt to put it on was being made it caught and wound around a wooden pulley and the main shaft and the countershaft, and was pulled tight between the two shaftings. The foreman undertook to extricate the belt without stopping the machinery. lie directed the plaintiff tó assist in releasing it, while the machinery was in motion, in a ma'nner the precise details of which need not be mentioned. The plaintiff complied with the directions of the foreman. He took hold of llie belt, which started, caught his leg and took him around the shaft, completely severing his leg, as has been stated.

For this injury the plaintiff seeks to recover damages against thedefendant, contending that the injury was ca,used through the negligence of. the defendant’s foreman, and that the defendant is liable therefor.

I do not think it can be seriously claimed that it can be said as a matter of law that the foreman was reasonably careful in attempting to- extricate this belt while the machinery was in motion. The jury might well find that if the foreman had used reasonable prudence and foresight he would have foreseen that harm might come to the men engaged in the work, as it did come to the plaintiff, in doing what was attempted without stopping the machinery.

• It is, however, contended that Mullin, the shift foreman in whose immediate charga the plaintiff was at the time of the accident, was neither a superintendent nor engaged in an act of superintendence in doing what he did and in the manner in which it was being done. -

The plaintiff worked in the soda ash department in what is known as the densifieation building. This department was under the general supervision of the manager of that department. In the densifieation building there were three shift foremen. During the day time there was a general foreman, and in the night time the apparatus, room foreman upon Ho. 1, as it was called, was responsible for the whole work of the. soda ash department.

Upon the night when the accident occurred James Fogarty was in general charge, and when he was upon the floor of'the densifi cation department he was in charge, and giving his orders through the shift foreman ; but when he was not present the shift foreman was in direct charge of the department: Mr. Mullin was shift foreman upon this occasion, and in the absence of Fogarty had the power to run the department and'had full direction and control over the men.

Mullin testified that' at the time of this accident he had full charge of the room. When necessary he gave the orders, and he started and stopped the machinery arid gave orders to the men for whatever work they had to do, and told them how to do it. It was his duty to see how the machinery was running. He frequently had to shut down the machinery if a belt became wound around a shaft, and used his own judgment about how to extricate the belt, and to shut down if necessary, and he would do that without consulting' anybody.

In charging the jury the learned trial judge said : “If you find by reason of his position in this company, by reason of the custom of the company and the course of its business in "the past, there was placed upon this man Mullin the essential and necessary authority to take charge of the machinery and the men and appliances of the concern, for the purpose of correcting that difficulty, and readjusting that belting and putting- the machinery into running order again — if his authority-went far enough to' clothe him with power in his discretion to order the machinery stopped; and if in the exercise of that authority he proceeded as he did, then he was acting for the time being and for the purposes of this case in the position of a superintendent, and so far as the liability of the defendant is concerned his negligence would be the negligence of the defendant.”

We think the rule as applied to the facts of this case was correctly stated, and that the evidence warranted the jury ip finding the facts to bring it within the rule. The mere fact that Mullin also assisted in the manual work of extricating the belt does not change his relation to the work which- was being carried forward at that time, nor relieve the defendant from the - consequences of liis negligence as regards the particular acts of superintendence.

It was not the manual labor alone which -Mullin did in doing what was done there, but the manner in which it was directed to be done and was done under his supervision which subjects the defendant to liability. What did the harm was the failure to stop the machinery, and the directing the plaintiff and his fellow-workmen to extricate the belt while it was in motion. He had full authority to shut down the machinery and to direct the men in their work. They were required to obey his orders. In the absence of Fogarty he was in full charge of both the work and the men, and that was his principal duty. .

Under such circumstances we think his omission to stop the machinery, and his attempting to extricate the belt while the machinery was in motion, and in directing the plaintiff, as .he did, to assist in releasing the belt, Hu-llin was exercising acts of superintendence, for the negligent performance of which the defendant is responsible. (Faith v. N. Y. C. & H. R. R. R. Co., 109 App. Div. 222; affd., 185 N. Y. 556.)

Other questions were raised by the defendant, hut we thinlcnone of them is such as to require or justify the granting of a new trial.

We think the judgment and order should be affirmed, with costs.

Spring, J., concurred.

Judgment and order reversed and new trial ordered, with "costs■ to the appellant to abide the event,-upon questions of law only, the. facts having been examined and no error found therein.  