
    Fritz M. Whallon, Respondent, v. Sprague Electric Elevator Company, Appellant.
    
      Master and servant — contractor for pa/rt of a work to he done in a building not under his control—liable for the safety of the appliances but not of the place— what is the negligence of a co-servant — when the superintendent is not the alter ego of the master.
    
    The rule that the master must provide the servant a reasonably safe place in which to do his work, does not apply in a case where the place is not under the control of the master;
    In an action brought by a servant against a master to recover damages resulting from injuries caused by the alleged negligence of the defendant, it appeared that a building was in course of construction in New York in which the defendant was to construct the elevators; that the building had reached the seventh story, the floor of which was about to be laid by another corporation, for which purpose it had constructed a scaffold between the beams; that the plaintiff went with a person named Cantlion, also employed by the defendant, that Cantlion had seen the scaffold in question, deemed it weak and had told the defendant’s superintendent of this about two weeks before the accident; that the superintendent told Cantlion to be careful and not to take any chances, but if the scaffold was laid and secure, to take the plaintiff with him and make the measurements; that after the scaffold was completed Cantlion took the plaintiff to the seventh story; that the plaintiff stepped from an iron beam to the scaffold between the beams, which broke and he was injured.
    
      Held, that the defendant was not liable;
    That the defendant did not construct the scaffold and had no control over it, and that whether the scaffold was deemed a “place” or an “ appliance,” in either view the defendant was not responsible for its condition;
    That as planks had been provided by the defendant which could have been used in crossing the iron beams, the failure to use them upon the part of the superintendent or of Cantlion, was the negligence of a fellow-servant in the detail , of the work for which the master was not liable;
    
      That the determination of the defendant’s superintendent as to when the measurements should he taken in the upper floors, constituted a part performance of the work itself, and was the act of a fellow-servant, in doing which he was not the alter ego of the corporation.
    Appeal by the defendant, the Sprague Electric Elevator Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of June, 1895, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 17th day of June, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    
      J. 17. <& G. 17". Bidgway, for the appellant.
    
      Herbert T. Keteham, for the respondent.
   Cullen, J.:

The action is, servant against master, to recover damages for personal injuries claimed to have been caused by the defendant’s negligence. It appears from the evidence that the “Postal Telegraph Building ” was in the course of erection in the city of New York. The defendant was engaged in the .construction of the elevators in that building. The plaintiff was a workman in defendant’s employ and had worked about the building for some weeks. On the occasion of the accident he was sent to the seventh story of the building with one Cantlion, a millwright, also in the defendant’s employ, to take measurements at the hatchways or openings where the elevators were to be placed and operated. The construction of the building had so far progressed that the iron girders at this story were in place, but the floor had not been laid. The floor was to consist of tiled arches turned between the iron beams. The work of laying the floor was being done by the Pittsburgh Terra Cotta Company. In order to prosecute the work the workmen of that company made a scaffold between the beams to serve a double purpose, as a center on which to turn the arches and sustain the tiles until the mortar set and as a scaffold on which the workmen stood. In going from the hatchway, at the south side of the building, to another opening at the north side, the plaintiff stepped off the iron beam on to the scaffold, which broke, causing him to fall and severely injure himself. There was evidence given tending to show that the planks used by the terra cotta company were insufficient and unfit for the purpose, and that Oantlion had called the attention of Williams, who was defendant’s superintendent of the work, to that fact some two weeks before the accident. On the day of the accident Williams told Oantlion to be careful not to take any chances, and if the scaffolding was laid and secured ” to take plaintiff with him and make the measurements. Oantlion went to the seventh story and found the scaffold not yet laid. On the second visit he found it completed, and plaintiff and he proceeded to make the measurements.

At the close of the plaintiff’s case the defendant moved to dismiss the complaint on the ground of the contributory negligence of the plaintiff, and that no negligence upon the part of the defendant had been established. The motion was denied and an exception to that ruling raises the only questions involved on this appeal. The first ground, that of the contributory negligence of the plaintiff, we think without merit, but the second ground, in our judgment, was well taken.

For the appellant it is contended that the question presented is not that of a place to work, but that of an appliance with which to work. The respondent contends that the question is whether the master provided a reasonably safe place for the plaintiff to do his work. We think, on either assumption, the same conclusion results. While the rule is well settled that the master must provide the servant a reasonably safe place to do his work, it is plain that this rule only applies where the place is either under the control of the master, or, in the ordinary conduct of the work, should have been under his control. In a factory, a mill, a shop, or even a mine or excavation occupied or worked by the master, it is his duty to take reasonable care that the place is secure and safe for his servant, and the servant has the right to assume that the master has- discharged his duty in that respect. But where the master sends his workmen to work on the premises or property of others, it cannot be said to be his duty to provide a safe place for the servant, for the place is not in any way provided by the master. I cannot find any reported decision in which it has been attempted to enforce liability in such a case. The defendant here had no share in the construction of the building, save to erect the elevators. Its implied license on the premises was confined to such parts as were necessary for it to occupy in the work or in obtaining access thereto, hut it had no control over nor was it responsible for the condition of the building. The learned counsel for the respondent concedes that the defendant could not have been held liable for any defect in the permanent structure, but insists that there is a distinction to be made between what is permanent and what is temporary.

We believe that this distinction may be well founded, but the necessary result of such a distinction is that what is temporary must be considered as m “ appliance,” and only what is permanent as a place.” This seems to be the basis of the decision in Butler v. Townsend (126 N. Y. 105), where it was held that a staging on which caulkers stood while at work on a vessel was not a place,” but an appliance,” by means of which the work was to be done. Assuming the scaffold to have been an appliance, the defendant did not construct it, and the only question is did it, by sending the plaintiff to the floor where it was laid, adopt it as its own ? The learned trial court charged the jury that if it was necessary to furnish the plaintiff a scaffold it was not necessary that the defendant build one; that if it found a scaffold there it was at liberty to use it, but it was bound to ascertain whether it was safe. We think there was nothing in the evidence which would justify a finding that it was necessary for the defendant to construct a scaffold on this floor. The danger of course was that of falling through the open spaces between the beams. The defendant had furnished planks to place across such spaces, and they were used when the work was being done at the elevator shafts. The evidence is very meagre as to how the defendant’s work at this building was being carried on. There was nothing to show that it had at any time before placed scaffolds over the floors to enable its workmen to cross them to the elevator shafts, or that such was the ordinary custom in the prosecution of similar work. Uor was the condition of the work such as, in the absence of proof as to custom, to authorize the inference that it should have erected scaffolds. The tilemen were at work turning the arches between the beams. As testified to by the plaintiff’s witness Cantlion, the only thing that could have been done was to lay the planks across the floor spaces, for the defendant was not at liberty to interrupt the work of the tilemen. Planks had been provided by the defendant. True, there were none on the seventh story, but if they should have been taken to that story it is not suggested that there were any other workmen than plaintiff and Cantlion to carry them there. In this respect the case is much weaker than that of Cregan v. Marston (126 N. Y. 568) where it was held that the master was not liable for the negligent use by his engineer of an unsound rope, he having furnished a supply of good ropes, though the ropes at the time were locked up in a storehouse. But if a platform was to be laid across the building, it also does not appear that it would have been the duty of any one but the plaintiff and Cantlion to have laid it. While the planks were being laid the spaces between the beams would remain open and the danger of injury would certainly be as great while laying the planks as while traversing the floor without the planks. Conceding, however, the duty of the defendant in this respect, its duty was discharged when it furnished the planks. The failure to use them, or the improper use of them, whether by Williams or Cantlion, was the negligence of a fellow-servant in the detail of the work for which the master is not liable. (Cullen v. Norton, 126 N. Y. 1.)

The plaintiff knew that the scaffold was not the scaffold of his master or provided by him, but built and in use by persons carrying on a different part of the work. He made inquiries of the workmen whether the scaffold was safe and was told that it was. He was not guilty of negligence in rising it under the circumstances, but still in working on this building, which he knew in the main, and with the exception of a small detail was not constructed by his master, he took the risk of danger from such construction. These were the risks of his employment.

If there was any negligence in this case it was either that of Williams in sending plaintiff to the seventh story while it was in such an unfinished condition, or that of Cantlion in failing to discover the defect in the platform. As the defendant neither built nor maintained the scaffold, the failure of Cantlion to discover its defects was not imputable to it. The only evidence as to the authority and powers of Williams is that he was superintendent of defendant’s work at the building. The determination of when the measurements should be taken in the upper floors, how far the construction of the building should have progressed before the attempt to take the measurements should be made, were intrusted to him, but, under the case of Cullen v. Norton (supra), his acts in those respects were a part performance of the work itself; and in such acts he did not represent the master, and the acts were those of a fellow-servant.

The judgment and order denying motion for new trial appealed from should be reversed and a new trial ordered, costs to abide event.

Ah concurred.

Judgment and order reversed and new trial granted, with costs to abide the event.  