
    George Filbert, Resp’t, v. The Pres’t, Managers, etc., of The Del. & Hudson Canal Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 15, 1890.)
    
    Master and servant—Negligence oe co-servant.
    Plaintiff, an employee of defendant, while uncoupling cars, was injured by falling into a pit between the tracks, containing a wheel to carry a cable. It was usually covered by planks, which he claimed had been removed by workmen of defendant while doing work in the pit, and not replaced. Held, that he could not recover, as the injury was due to carelessness of co-servants, for which defendant was not responsible, as it was not an improper structure, or in an unsafe condition, nor were the co-servants unskillful.
    (Huger, Oh. J., and O’Brien, J., dissent.)
    Appeal from judgment of New York superior court, general term, affirming judgment in favor of plaintiff, entered upon verdict of jury at trial term, and order denying motion for new trial upon judge’s minutes.
    
      Matthew Hah, for app’lt; Abel K Blachmar, for resp’t.
    
      
       Reversing 18 N. Y. State Rep., 964.
    
   Earl, J.

On the 15th day of January, 1887, the plaintiff was in the employment of the defendant at Weehawken, in New Jersey, and while attempting to uncouple cars, he claims that he fell into a hole between the tracks, and received the injury for which he brought this action. At the place where he was injured there was a pit between the tracks, in which there was a wheel over which a cable was used for drawing cars up an inclined plane. The pit, when in its proper and ordinary condition, was covered with planks laid crosswise between the tracks. It is the claim of the plaintiff, and he gave some evidence tending to prove,, that the workmen of the defendant on the 14th day of January took up these planks for the purpose of doing some work in the pit, and that they did not replace them, and that the pit remained uncovered until the next day in the morning, when he in the discharge of his duty stepped into it, and in consequence of it received the injury of which he complains. His claim is that he was injured in consequence of carelessness chargeable to the defendant, his master; while it claims that his injury was due to the carelessness of co-servants, for which he cannot hold it responsible.

We are of opinion that the position of the defendant is well founded. There was no claim upon the trial, and no proof was given tending to show that the pit when covered was in any respect an improper structure, or in an unsafe condition, or that the plaintiff’s co-servants were unskillful. The sole claim on his part is that the carelessness of the defendant consisted in leaving the pit uncovered.

It appears that in the operations of the railroad at that point it was frequently necessary to remove the planks covering the pit temporarily for the purpose of making repairs therein, and that the employees engaged in and about that work were repeatedly instructed to cover the pit when the repairs were finished. There is no allegation, and there was no proof that the employees did not have suitable material to cover the pit. The sole allegation is that they did not cover it and it was therefore their negligence and not the negligence of the company that it was uncovered at the time of the accident. The defendant was bound to furnish a reasonably safe place for its employees to work, and to furnish suitable implements and machinery for them. Here that duty was fully discharged. The pit was not dangerous when covered with the planks, and the danger was solely due to the fact that the plaintiff’s co-servants left it uncovered Within the rules applicable to such a case the plaintiff and the other’s there engaged in the service of the defendant, including the foreman, were co-servants engaged in a common employment, and the common master cannot be held responsible for an injury caused to any one of them through the carelessness of any of the others. The employees were not engaged upon an imperfect road or structure; but they were engaged in the management or conduct of a road properly and safely constructed, and rendered unsafe solely by their carelessness.

This is like the case of a master builder who builds a platform upon the side of a building for his employees to work upon, and one of them removes from the platform a plank, and in consequence thereof another employee falls through the aperture thus made and is injured, and in such a case it is well settled that the master is not responsible for the injury. If this defendant had been engaged in repairing a bridge, and one of its employees had taken up a plank and had not replaced it, and another employee had fallen through the hole in consequence of such carelessness, the defendant would not have been responsible.

The following cases illustrate the rules of law applicable to this case, and are ample authority for the conclusion we have reached. Crispin v. Babbitt, 81 N. Y., 516 ; McCosker v. L. I. R. R. Co., 84 id., 77; Slater v. Jewett, 85 id., 61; Brick v. Roch. etc., R. R. Co., 98 id., 211; Neubauer v. N. Y., L. E, & W. R. R. Co., 101 id., 607 ; Loughlin v. State, 105 id., 159 ; 6 N. Y. State Rep., 826; Anthony v. Leeret, 105 N. Y., 591; 8 N. Y. State Rep., 542; Hussey v. Coger, 112 N. Y., 614 ; 21 N. Y. State Rep., 848; Hudson v. Ocean Steam Ship Co., 110 N. Y., 625; 16 N. Y. State Rep., 416; Byrnes v. N. Y., L. E. & W. R R Co., 113 N. Y., 251; 22 N. Y. State Rep., 936; Stringham v. Hilton, 111 N. Y., 188; 19 N. Y. State Rep., 621; Judson v. Village of Olean, 116 N. Y., 655; 26 N. Y. State Rep., 706.

We are, therefore, of opinion that the judgment should be reversed and a new trial granted, costs to abide the event.

Andrews, Finch and Gray, JJ., concur; Buger, Ch. J., and O’Brien, J., dissent; Peckham, J., not sitting.  