
    C. La Verne Ludlow, Plaintiff, v. The Groton Bridge Company, Defendant.
    (Supreme Court, Tompkins Trial Term,
    February, 1896.)
    Master and servant' — Negligence of foreman.
    Where the master has supplied1 proper trucks .to be used in removing 'heavy iron, and proper stays by which it could' be fastened,' the negligence of the foreman in failing to properly secure the iron upon a truck, whereby it fell over and injured one of the employees, is that óf a fellow .servant-, and not of the master, and the latter is not liable for such injury. > ■-.....
    Motion for a new- trial after a judgment of nonsuit. -
    Action for injuries alleged to have been caused .by defendant’s negligence.
    Smith & Dickinson, for plaintiff;
    S. D. Halliday, for defendant.
   Smith, J.

The question here arises upon a motion for á new trial made-aftér the' direction by the court, át circuit, of á dismissal of the plaintiff’s complaint. The facts are these: • The plaintiff was employed as a1 laborer in the bridge works of the defendant. One Hemmingway was the foreman- of the bridge works, and in removing certain heavy iron he had failed to properly secure the samé to the truck, and by-reason of his negligence the iron fell over and caused the injury of which the plaintiff complains, It is not claimed that the defendant failed to supply proper trucks for the ■ .service, nor that it failed to supply proper .stays by which the iron could be fastened.

The claim of the plaintiff is that the foreman, in securing the iron to the .truck, was acting as the alter ego of the master, and that his negligence, rendering unsafe the plaintiff’s place to work, was negligence for which the defendant can be held liable.

I have carefully examined the elaborate brief of the plaintiff’s counsel upon this motion. The general rules as stated by him are undoubtedly correct. The master is bound to furnish a safe place to work. He is not only bound to furnish a safe place, but he is bound to keep it in a safe condition. It is. undoubtedly true that, in the performance of this duty, his. responsibility cannot be delegated. The act of the humblest mechanic, in the performance of this obligation, is his act, for which he is responsible. This is the doctrine which was explicitly held in the case of Ballard v. Hitchcock Manufacturing Co., recently tried at Cortland, and to which reference was made upon the trial. That case, in the Court of Appeals, is reported in 145 N. Y. 619, and reported below in 71 Hun, 582. This rule, however, has been somewhat limited by the decisions; and, while the master is still held liable for the original furnishment of a safe place to work, and for its subsequent condition, he is no longer held liable where the place has been rendered unsafe by the negligence of a coservant, while that co-servant is engaged in performing his duties as coservant. In Crispin v. Babbitt, 81 N. Y. 516, one B. was a foreman, in charge of defendant’s works. By his carelessness in letting steam into an engine, the plaintiff, an employee of defendant,.was injured. It was held, in that case, that the act of B. in letting on steam was the act of a mere operative, for which the defendant would be liable to a stranger, but not to a fellow servant of the negligent employee. In Webber v. Piper, 109 N. Y. 496, the plaintiff was injured while using a circular saw in defendants’ factory where he was employed. In an action to recover damages for the injury, it appeared that the accident was caused by the dullness of the saw. Defendants had furnished duplicate saws, so that, when one needed to be sharpened and reset, it could be replaced by the other. It was the duty of one M., also a servant of defendants, to sharpen and reset the saws when necessary. On the morning of the accident, plaintiff notified M. that the saw he was using wás dull, and asked for another. M. replied that he had no time then to sharpen a saw, and directed plaintiff to go on with his work. It was there held that the plaintiff Was properly nonsuited, that no negligence on defendants’ part was shown, and that their duty was performed when they furnished suitable saws and the means and conveniences for keeping them sharp and properly set. Judge .Finch, in writing the opinion in that case, declares some principles of law which are peculiarly applicable to the case at bar. Upon page 499, 109 Ni. Y, he says:

There are many matters of detail in the management of safe and adequate machinery which must be intrusted to the operatives, and as. to which the master owes no duty except, the employment of competent workmen, and we deem this a case of that character. ■ The line, of division between the duty of the master to furnish and maintain safe and adequate machinery, and that of the operative to manage and handle it with prudence and care, is difficult to define by any general description, but it is quite obvious when each case, as it arises, comes under consideration. In the one before us the neglect, if any, was in a detail of the management of the machinery. A master builder might furnish proper tools to his workmen, but it would not be his duty to sharpen every chisel as it became dull, or sharpen every saw when that need arose.' The appellant relies upon the case of Kain v. Smith, 89 N. Y. 375. If, in that case, the master had furnished another jigger, perfect in all respects and. safe and adequate for use, and the neglect had been that the foreman used the old one, which had become unsafe, when he might have used the new one, a very different case- would. have been presented.”

In the case of Kain v. Smith, cited by Judge Finch, it had been held that the place hád been rendered unsafe by the use of a defective jigger by the foreman. It was' not claimed that the act of the foreman was the ground of negligence, but. the jigger itself, which was a tool required to be used, was defective. In the light of these facts, the law, as declared by Judge Finch, to the effect that, if the neglect had been that of the foreman in using an unsafe jigger, when a safe one. had been provided, a very different case would have been presented, is to my mind declarative of the principle which must govern the case at bar. Such would have been the precise facts which are here for adjudication.

In the case of Cullen v. Norton, 126 N. Y. 1, Justice Peckham declares the same principle. In that, case it appeared that the decedent was employed by the defendant as a laborer in his quarry, and was engaged in drilling rock for blasting purposes under the direction of D., defendant’s foreman. After a blast, it was found that the charge in one of the holes had not exploded. D. examined it, and found the fuse unconsumed, but failed to remove it. He set other workmen to work drilling within two feet, and directed C. to drill at a place some twenty or thirty feet distant. The fuse caught fire, and the charge in the hole exploded, causing C.’s death. It was there held that, assuming D. to have been negligent, his negligence was that of a fellow servant, for which the master was not liable. Justice Peckham, in writing the opinion for the court, says:

“ The quarry was the place where the work was to go on, and the master was bound to make it a reasonably safe place for such work, considering its character, and the necessarily dangerous nature of the work itself. For the manner in which the .persons employed in the quarry should themselves perform their work, the master was n'ot liable. It is not claimed that the master did not furnish a proper place.to work in the first instance; that is, when the deceased was employed, the quarry was as safe as any quarry is where frequent blasts are being fired off. But the manner of the performance of each of the various details of the work, by which, as a whole, it was to be conducted, rested necessarily upon the intelligence and care and fidelity of the servants to whom these duties were intrusted. It can’t be that every time a blast- was exploded, and the men came back, the manner of their distribution for work was the duty of the master, and that the order of a foreman, mistakenly or negligently given, must be regarded as the order of the master in filling a duty to furnish a safe place to work in. It is, as it seems to me, a detail of the working or management of the business, the risks attending which' have been assumed by the party taking employment.”

And, on page 7, 126 N. Y., Justice Peckham further says:

“ In this case, it is the ordinary one of choosing a method, a time, and a place for continuing the work in the quarry; and this involved' questions of judgment and discretion committed in this instance, it would seem, to Doran. He, it may be conceded, mismanaged or misjudged the matter, and after placing the deceased at work, negligently or improperly placed others at work too near the hole in which the powder had not exploded; and the consequence was this most unfortunate accident. The accident resulted from a negligent act done in the very course of the work, and by one of the fellow workmen of the deceased. The negligent act was a part performance of the work itself, the risks of which the deceased had assumed. The master had provided a competent and experienced foreman, who had been in his employment a number of years, and he was not chargeable with the consequences of a place for work made dangerous only by the carelessness and neglect of a fellow Servant, although that fellow servant happened to be the foreman.” See, also* Scott v. Sweeney, 34 Hun, 292; Beilfus v. N. Y., L. E. & W. Ry. Co., 29 id. 556; Faber v. Carlisle Manufacturing Co., 126 Pa. St. 388.

These authorities would seem to be decisive of this case. The broad doctrine that the master is liable for any act of a fellow servant which renders unsafe the place to which the plaintiff has been .assigned to work -is no longer maintainable. Suppose the foreman had been absent and one of the more experienced workmen had been moving this iron, can it be claimed, for a moment, that his negligence would he the negligence of the master? ‘ Suppose, by negligence, a workman allows his tool to fly and strike a fellow workman, can it he contended, for a moment, that his negligence is the negligence of the master in failing to secure a safe place to work? Within the authorities, I think, and, certainly, within the doctrine of the'controlling cases in this .state, the act of Hemming-way, although the foreman of the defendant, was an act rendered necessary in prosecuting the work in its detail, and the act was that of a fellow servant.

The judgment dismissing the complaint must, therefore, stand.

Motion denied.  