
    Charles Pluckham, Appellant, v. American Bridge Company, Respondent.
    
      Negligence — injury to a Workman, attempting to move an iron rail on a buggy, by reason of a defective-rope —the buggy is an implement, not a mechanical contrivance, and hence not within section 18 of the Labor Law — the master is bound to furnish a safe rope—the act of its foreman directing ths use of a defective rope does not relieve it from liability—a question ispi-esentedfor thsjury.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff, it appeared that the employees of the defendant, of whom the plaintiff was one, were engaged in moving irpn beams by means of a buggy; that ' ifclie buggy was a two-wheeled contrivance having a, long tongue; that the method of using the buggy was to place it astride the beam to be moved, fasten- the beam at about the middle thereof to the axle of the buggy by a ■chain, pull down the tongue of the buggy upon the beam and then fasten the tongue and the beam together by a rope.
    It further appeared that on the occasion in question-the foreman in charge of the work was informed that the rope designed to be used in fastening the tongue to the beam 'was too light to Withstand the strain .to which it would be subjected; -that the foreman thereupon sent a workman for another rope; that the workman having returned with the report, which the evidence tended to show was true, that no other rope was obtainable, the foreman .instructed the workmen to use the rope which they had; that the plaintiff at this time had gone for a drink of water and that when he returned the men were tying the tongue of the buggy to the beam with the rope; that after the beam had been secured án'd while the plaintiff was in position at the tongue for the purpose of directing the course of the .buggy, the rope broke and the plaintiff was struck and injured by the tongue.
    Upon an appeal from a judgment dismissing the plaintiff’s complaint, it was
    
      Held, that the buggy was to be regarded as an implement and not as a mechanical contrivance, and, consequently, that the case did not fall within the provisions of section 18 of the Labor Law (Laws of 1897, chap. 415).
    That it was the unqualified and absolute duty of the defendant to exercise reasonable care to furnish the plaintiff with a safe and suitable rope for use in tying the tongue of the buggy to the beam to be moved, and that it could not, by delegating the performance of that duty to another, exempt itself from liability for its non-performance;
    That the defendant was not relieved from liability by reason of the action of the foreman in directing the use of the rope in question, whether such foreman be considered as the alter ego of the defendant or as a fellow-servant of the plaintiff, since, in either event, the action of the foreman, whether due to negligence or to an error of judgment on his part, was simply a contributing cause of the accident;
    That the evidence required the submission to the jury of the question whether the defendant had performed this duty.
    Ingraham and McLaughlin, JJ., dissented.
    Appeal by the plaintiff, Charles Pluckham, from a judgment of the Supreme Court in favor of the defendant, entered in the office" of the clerk of the county of New York on the 28th day of July, 1904, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 19th day of July, 1904, denying the plaintiff’s motion fór a new trial made upon the minutes.
    
      Charles Caldwell, for the appellant.
    
      Frank Verner Johnson, for the respondent.
   Hatch, J.:

The plaintiff was an ironworker in the employ of the defendant. The accident which produced the injury complained of was caused by the breaking of a rope. The defendant was engaged in the construction of a building upon a lot running through the block from Seventy-fourth to Seventy-fifth street, near Avenue A, in the borough of Manhattan, city of New York. In the course of such - construction it became necéssary to mgve seven iron beams about twenty feet long by' ten' inches Wide and weighing from two to three tons. The contrivance which was made use of for this purpose was called a “buggy,” and consisted of a tongue about - fourteen feet loiig,, with two large wheels at it's rear end connected by an axle of a peculiar shape. A chain was attached to the rear end óf the buggy.and used to raise the beams from the ground and hold them suspended.under the axle. The method of use was to suspend the beams under.the axle by attaching the chain at about their center, then to pull the tongue down upon the beams in a horizontal position, it acting as a lever in raising the beams, and wrap the tongue and the beams together with a rope.

The men in charge of this work, including the plaintiff, were under'the direction of a foreman. When the buggy was placed in position astride the beams and before the actual-loading had begun, the foreman’s attention Was called to the condition of the rope used in tying down the tongue,' and.it was stated "that it was too light for the strain to which it was to be subjected, and was, therefore, unsafe. Thereupon the.foreman sent a workman for another rope, and he returned with the statementxthat “there wás.no lines to be got; * * - * there was no line in the shanty.” The foreman then directed the men to use the rope which they had. The plaintiff at this time had gone for a drink of water, and when he returned the buggy had been pushed over tlife beams, the tongue brought down, and the men were tying it with the rope. The foreinan directed the plaintiff to get hold of the'tongue and keep it around. , When- loaded, the beams balanced ■ under the axle of the buggy, and the. plaintiff’s position at the'tongue was for the purpose of directing the course over which the load would be moved. While he was in this position the rope which held down the tongue broke and the plaintiff was thrown into the air,' carne down, striking upon the back of his head and sustained severe injuries.

, • The evidence on the part-of the plaintiff tended to show that there Was rope in and about the building and the premises, yet it also, disclosed that "such rope was being used for various purposes by other workmen employed on the building, and that the only way in-which additional .or other rope could have been procured was by taking it away from some of -the other workmen who were at." the time engaged in making nse of it. The evidence in this regard was clearly sufficient to have authorized the jury to find that at the time when the rope in question was used there was no other rope upon the premises which could have been obtained by the workmen to supply the place of the one that was used. The workman who was sent for the rope reported that he could not find any. Other witnesses testified that no rope could be obtained save by fighting for it to get it from somebody else, and that all the rope furnished was in use.

At the close of the evidence, upon motion of the defendant, the court dismissed the complaint on the ground that the furnishing of the rope was a mere detail of the work; that the foreman was a fellow-servant of the plaintiff, and either negligently directed that the workmen use a rope which he knew was insufficient, or that, in the exercise of judgment, he erroneously determined that it was of sufficient strength for the nse to which it was devoted.

The claim was also made that the buggy was a mechanical contrivance within the provisions of section'18 of .the Labor Law (Laws of 1897, chap. 415), and that, therefore, the plaintiff was entitled to recover under the rule of law which the statute provides. Upon this subject the court held that the buggy was to be regarded as an implement, and did not fall within the terms of the statute, so that no liability could be predicated against the defendant under its provisions. We agree with the learned court below in the view which it took of the latter question.

We are not, however, able to agree with the conclusions reached by it respecting the first question. It is settled by a nearly unbroken line of authorities in this State that a master is bound to use all reasonable care, diligence and caution in providing for the safety of those in his employ, and furnishing for their use in his work safe, sound and suitable tools, implements, appliances and machinery in the prosecution thereof, and keeping the same in repair. This is the master’s-duty, and he cannot exempt himself from liability for its omission by delegating its performance to another, or having required work to be done, by omitting precautions and inquiries as to the time and manner of its performance.” (Benzing v. Steinway & Sons, 101 N. Y. 547.) The obligation to furnish necessary, safe and suitable appliances for the prosecution of the work is the' unqualified and absolute duty of the master. In this regard he.is required to exercise reasonable care and prudence. He may not delegate it so as tó exempt himself from liability in the event that the delegated authority fails in the performance of the duty, and the risk which the servant assumes Aloes not begin until the discharge of this duty by the master. (Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y. 368 ; Probst v. Delamater, 100 id. 266.) So familiar are thesé rules that at this day it seems almost unnecessary to state them. They are also accompanied by another rule, equally well settled, the fact “ that a fellow-servant m^y, by care and caution, operate a defective and dangerous machine so as not to produce an injury to others, does not exempt the master from his liability for an omission to perform the duty which the law imposes . upon him of exercising reasonable care and prudence in furnishing safé and suitable appliances for the use of his servants. The rule which excuses the' master under such circumstances presupposes that lie has performed the Obligations which the law imposes' upon him, and that the injury occurs solely through the negligence of the co-employee.” (Stringham v. Stewart, 100 N. Y. 516 ; Coppins v. N. Y. C. & H. R. R. R. Co., 122 id. 557; Benzing v. Steinway & Sons, supra.) Applying these rules to the evidence in this case it is manifest that a question was presented which required its submission to the jury. The obligation resting upon the master was to' exercise reasonable care in furnishing safe and suitable appliances. The jury would' have been authorized to find- that the defendant failed in this regard in not supplying a sufficient quantity of rope safe and suitable to be used for the purposes required.

Hor was the. defendant relieved- from its liability by reason of the action of the foreman whether he be considered as the alter ego of the master or merely a fellow-servant with the plaintiff. In either event the most that could be said in favor of the defendant is that the foreman either negligently or through an error of judgment directed the employees to- make use of the unsafe rope. But this was only a cause contributing to the accident and it' became united with the negligence of the- defendant in failing- to furnish a suitable appliance. The case is brought, therefore,. squarely within the rules announced in the foregoing, authorities,, and hence it was error to dismiss the plaintiff’s complaint.

It is said, however, that the recent case of Vogel v. American Bridge Co. (180 N. Y. 373) has changed, by either overruling or modifying, the doctrine announced in the authorities to which we have called attention. It must be confessed that this authority staggers the doctrine of alter ego, and in common parlance it may be said to have rendered it quite “ groggy.” The decision in that case, however, was made to rest upon two facts: One, that the master had furnished suitable appliances in every respect which might have been used in place of the defective rope that caused the injury; and, second, that the master having discharged this obligation the foreman did not stand in the relation to the employee of the alter ego of the master, and in directing that the defective rope be used t # was .either guilty of an act of negligence or of an error in judgment; that in performing this act he stood in the relation of a fellow-servant to the plaintiff and as it was the sole cause of the accident it was his negligence or error of judgment alone and not the negligence of the master. So that therein there was no contributing negligence as the court held of the master with the act of the servant. For that reason the case was taken out of the operation of the rule of the cases above adverted to, as well as those discussed in the opinion in that case. The prevailing opinion therein clearly recognizes the doctrine to which we have called attention. Its language is : “ The doctrine of the responsibility of the master for the neglect, or default, of one who, in the eye of the law, is his alter ego, applies to the obligation to furnish to his employes a reasonably safe place to work in and safe appliances to work with. When the master is represented by one, who may be regarded as his alter ego, or a vice-principal in the work, if the specific act, which is the subject of a complaint, is one which can be properly regarded as within the personal duty of the master, and not as some- act in the line of a mere servant’s duty, then the master is justly chargeable with the results; whether it be an act of negligent performance, or one of omission.” The line in that case was sharply drawn, and the division of view in the court was governed by the relation which existed between the defendant and the foreman. In the present case such question is not of consequence, for here the evidence tends to establish that the master failed in his initial obligation to furnish a safe and suitable appliance. Had that fact appeared in the Vogel cáse, or if the evidence had been sufficiently^ strong to authorize the jury to find it, the decision would have .been the other way, and evidently by an undivided • court. This. case, therefore,- is clearly distinguishable from that, and this distinction .required that the case should be submitted to the. jury. '

q The judgment and order should, therefore, be reversed and a mew trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., arid O’Brien,-J., concurred ; Ingraham and McLaughlin, Jj., dissented. ’

McLaughlin, J. (dissenting):

. I am unable to concur in the opinion of Mr. Justice Hatch, because it is opposed to the rule laid down in Vogel v. American Bridge Co. (180 N. Y. 373). The principle there applied is the one to be applied here and necessitates an affirmance instead of a reversal of the judgment.

' In- that: case the defendant was engaged in erecting an iron or steel frame for a building. The supervision of the work, including the employment and. discharge of workmen, was committed to a foreman.. During the progress of the work it became -necessary to raise an iron or steel truss to an upright position. An effort was made to do this by a rope which, after passing around the .truss, ran to . the block and tackle of a derrick. The rope' which was . - used was first examined by some of the'men engaged in doing the work and by them rejected as not being strong enough, and thereupon some of them went to a house nearby for the purpose of get- . ting another. They were there met by the foreman, who inquired what they wanted, and on being informed, told them the rope they had was strong enough, and to go back -and use. that. They went back, this rope -was used, and in raising the truss.the rope broke and plaintiff was injured. It was held that the foreman was not the alter ego of the defendant and that the use of the rope was due either to his negligence pr "error of judgment, for' which defendant ' was not liable.

In the case now before us the defendant was also engaged in erecting an iron or steel frame for a building, and during the progress of the work it became necessary to move some iron or steel beams which lay on the ground from' one side of the building to the other. The method employed for doing this was by the use of what, is termed a “ buggy,” which consisted of two wheels connected by an axle, with a tongue about fourteen feet in length. A chain was attached to ihe axle, this was passed around the beams a little beyond the center and then after they had been lifted from the ground, one end of the beams was fastened to the tongue by means of a rope. The man who had charge of the work was not the general foreman, as in the Vogel case, but one who simply had charge of the gang of men engaged in moving the beams. He did not have the power to hire or discharge men, or in fact any power, so far as appears, except to give directions as to the manner in which the beams should be moved. After the “ buggy ” had been placed in position it was suggested by some of the workmen that the rope which they had was not strong enough, and thereupon one of them went for another, but returned without having procured it, and the foreman directed that the one which they had be used. It was used, broke, and plaintiff was injured. A fair consideration of the' testimony bearing on the subject shows that there were other ropes which could have been procured. However, this is immaterial under the rule laid down in the Vogel case. The use of the rope was due either to the negligence or .error of judgment of the foreman, for which defendant was not liable. He decided that the rope was sufficient and directed that it be used. This is precisely what took place in the Vogel case. The cases cannot be distinguished in principle, and unless this court is to refuse to be bound by Or to follow the decisions of the court of last resort, then the judgment appealed from must be affirmed. • '

Ingraham, J., concurred.

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