
    John Koszlowski, Respondent, v. American Locomotive Company, Appellant.
    
      Negligence—when the. question whether the master has provided a safe place for Ms-employee to work does not arise— when a person repairing machinei'y is a coemployee of one using it—when the jury may not determine whether proper rules home Veen promulgated. ' •
    In an action brought to recover damages for personal injuries it appeared that the plaintiff was employed as a common laborer in the erecting shop of the defendant’s locomotive works; that a steel rod weighing forty-five or fifty pounds appurtenant to an overhead traveling crane installed in the erecting shop became bent; that one Prunier was sent from the repair shop to take down the rod and repair it; that after loosening the rod, Prunier let it drop to the floor; that on its way to the floor the rod became deflected by striking a girder and struck and injured the plaintiff, who was standing twenty-five or thirty feet from the spot where the rod would have struck had it fallen perpendicularly to the floor.
    
      Held, that inasmuch as there was no claim that the erecting shop was unsafe in any respect, except as it had been made so by the dropping of the rod, the rule that a master is obliged to furnish a reasonably safe and proper place for his employees to work in did not apply, and that it was error for the court to submit to the jury the question whether the defendant had performed this .duty;
    That Prunier was a mere coemployee of the plaintiff and that the defendant was not liable if the accident resulted from his negligence;
    That it was consequently error for the court to leave to the jury the question whether Prunier was a coemployee of the plaintiff, and to give them to understand that if they believed Prunier was engaged in a different kind of work from the plaintiff, he might be considered as not a coemployee.
    That, in the absence of evidence of any rule governing similar conditions having been promulgated by any employer prior to the happening of the accident in question, it was improper for the court to instruct the jury that it was for them to determine whether or not, under all the circumstances of the case, it was necessary for the defendant to promulgate or adopt rules and regulations to provide for such occurrences as these, and whether or not if such rules and regulations had been provided this accident would have been averted;
    That a master may not be held liable for not promulgating rules and regulations for the protection of his employees, unless it appears from the evidence in the case that some rules or regulations were practicable, and, if observed, would give such reasonable protection.
    That a jury may not assume that a rule which occurs to them as a desirable one would be practicable and would, have prevented the injury, unless it appears in evidence that other companies have adopted and used it, or, in some other way, that experience or practical use has proven its efficiency.
    Appeal by the defendant, the American Locomotive Company, from a judgment of the County Court of Schenectady county in favor of the plaintiff, entered in the office of the clerk of the county of Schenectady on the 30th day of September, 1903, upon the verdict of a jury for $1,500, and also from an order entered-in said clerk’s office on the 30th day of September, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    The plaintiff was working for the defendant as a common laborer in the “ erecting shop ” of its locomotive works at Schenectady, N". Y. In this room were several cranes, used for lifting and handling the heavy parts of a locomotive- when they were being put together. These cranes were some thirty or forty feet above the floor of the room, and traveled on two parallel tracks running on each side of the building. A part of the construction of these cranes consisted of what is called a “ trip rod.” It is an upright iron or steel rod, about one' and three-fourths inches in diameter, and six feet long, weighing forty-five or fifty pounds. It leads through two bearings, and appears to be held in place by set screws. On the night of December 4, 1902, it was found that the crane would not work. A man named Prunier was sent from the repair shop to repair it. On going up on to it he found that this trip rod had been bent, and he was obliged to straighten it as best he could so that it would slide through the bearings and could be taken from the crane and perfectly repaired. In taking it out of its place after straightening with a maul, he loosened the set screws, laid down on his stomach on the crane, and holding the rod in his hand, let it slip through the bearings, and thus freeing it from its place in the crane, he held it by the end for a moment and upon signal from some one below, let it drop to the floor.
    While Prunier was loosening this rod and getting ready to drop it, the plaintiff and others of the gang of laborers with whom he was working stood about waiting an opportunity to use the crane. It Seems that at the time Prunier let go of the rod, the plaintiff stood some twenty-five or thirty feet from the spot where the rod would have struck had it fallen perpendicularly to the floor; but on its way down the- rod struck the flange of an iron girder and was thereby so deflected that it struck the plaiutiff where he was standing, and seriously injured him.'
    He brings this action against the defendant to recover for injuries so sustained. The jury gave him a verdict of $1,500, and from the judgment entered thereon, and from an order denying a new trial on the minutes, this appeal is taken.
    
      Alonzo P. Strong, for the appellant.
    
      Frank Cooper and Theodore F. Hamilton, for the respondent.
   Parker, P. J.:

In its charge the court substantially instructed the jury, among other things, that as matter of law it was the duty of the defendant to furnish a reasonably safe and proper place for the plaintiff to work in, and instructed them that the important question in the case for them to determine was whether the defendant had done so; that is, whether or not the defendant Teept this place where the plaintiff worked reasonably safe and secure from accidents of this sort, and'you are to judge and determine that question.”

Inasmuch as there is no evidence or claim whatever that the shop where the plaintiff was required to work was unsafe in any respect, save as it was made so by the act of Prunier’s dropping the rod from above, it is clear that such rule had no application to the'facts of this case. A master does not fail in the duty which the rule imposes when the place becomes dangerous only by reason of the carelessness of a fellow-servant. (Hussey v. Coger, 112 N. Y. 614; Peet v. Remington & Son Pulp & Paper Co., 86 App. Div. 101, 105 ; Ludlow v. Groton Bridge & Mfg. Co., 11 id. 452; Perry v. Rogers, 157 N. Y. 251.) Such a charge gave the jury an erroneous, rule of law to apply to the facts of this case.

The court further instructed the jury, in substance, that if Prunier, who dropped the iron rod, or the night boss of the gang with which the plaintiff was at work, were mere coemployees with the plaintiff, then the defendant was not liable for the negligent act of either ; but if either of them was not a coservant with the plaintiff, if they were “ mere servants doing different kinds of work,” that then the defendant was liable for the negligent a ct of either, and that it was a question for the jury to determine whether or not they were such coemployees. And in this' connection the court also refused to charge, “ that Prunier, while repairing the crane and in detaching or dropping the bar or bolt in question, was a coservant of the plaintiff.” It also refused to charge that Prunier, while só repairing the crane, was in the same general service of the defendant as was the plaintiff. It also refused to charge that defendant was not chargeable for Prunier’s negligent act in detaching or dropping the rod on the ground; that he was at the time engaged in a different kind of work from that in which the plaintiff was engaged or for which he was employed by defendant.

Thus the court distinctly left it to the jury to determine whether Prunier or the boss were coemployees with the plaintiff, and even gave them to understand that, if they believed Prunier was engaged in a different kind of work from the plaintiff, he might be considered as not a coemployee ; and very naturally the jury would find a verdict for the plaintiff upon such a charge if they concluded that Prunier was negligent in dropping the rod, and that he was not a coemployee of the plaintiff, or even if he was engaged in another kind of work from that of the plaintiff.

But it is clear from the evidence that Prunier was a mere coemployee with the plaintiff. There is not a fact in the case to indicate that he was anything else, and, hence, it was clear error to permit the jury to conclude otherwise, and, hence, it is more than probable that the jury have considered the defendant liable for whatever negligence they may have considered Prunier was guilty of. But for the negligent act of a coservant the master is not liable, and, hence, it is probable that the verdict has been rendered upon an erroneous view of the law.

Prunier was none the less a coservant because he was engaged in repairing the crane, nor because he was usually employed in another shop. Such work was a matter of detail, liable to become necessary at any time in the shop. It was not being performed for the purpose of making the shop safe, but was brought about by the ordinary progress of the work in the shop and became necessary in order to carry on the usual work of the shop, and it was part of Prunier’s ordinary duties to make such repairs. (Byrnes v. Brooklyn Heights R. R. Co., 36 App. Div. 355; Webber v. Piper, 109 N. Y 496; Hussey v. Coger, 112 id. 614; Butler v. Townsend, 126 id. 105; Filbert v. Delaware & Hudson Canal Co., 121 id. 207.)

The court further instructed the jury, in' effect, that it was for them to determine whether or not, under all the circumstances of the case, it was necessary for the defendant to promulgate or adopt rules and regulations to provide for such occurrences as these, and whether or not if such rules and regulations had been provided this accident would have been averted.

This instruction was equivalent to telling the jury that if. they could think of any regulation that the defendant might have made, which, in their judgment, would have averted the accident, they might hold the defendant liable for the injury. Such is the only .import that, in my judgment, can- fairly be given to the language used.

But a master may not be held liable for not promulgating rules and regulations for the protection of his employees unless it appears from the evidence in the case that- some rules or regulations were practicable,- and,, if observed, would give such reasonable protection. A jury may not assume that a rule which occurs to them as a desirable one would be practicable and would have prevented the injury, unless it appears in evidence that other companies have adopted, and used it, or, in some other way, that experience or practical use has proven its efficiency. (Larow v. New York, Lake Erie & Western R. R. Co., 61 Hun, 11, 15; Smith v. Lidgerwood Mfg. Co., 56 App. Div. 528, 530.)

And so also the defendant should not be held negligent in not having promulgated any particular rule, until it appears that it should have foreseen and anticipated the necessity for the rule, and that, it was a practical and ' beneficial, one. (Morgan v. Hudson River Ore & Iron Co., 133 N. Y. 666.)

No evidence of any rule being used by any one. else to regulate similar conditions was given,- except in one instance of the General Electric Company; and, as I read the evidence, that rule was not promulgated until after this accident occurred. Moreover, the jury were not confined to the inquiry whether such a rule should have" been adopted, but were allowed to hold the defendant negligent if any rule whatever would, in their judgment, have averted the accident. Within the. cases above cited, such inquiry was much too broad and not warranted by the law.

There are many other exceptions taken by .the defendant’s counsel, which present very serious objections to sustaining this judgment, but the errors above pointed out require its reversal, and I do not further examine them.

All concurred; Smith and Chase, J.J., in result.

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