
    Charles F. Allcot, Appellant, v. Henry P. Kirkham and George K. Kirkham, Respondents.
    
      Negligence — injury from, the act of cm incompetent fellow-workman, after complaint of his incompetency to the foreman — proof of specific acts of incompetency must be shown—what establishes their existence — continuance of the work, when notan assumption of the risk.
    
    In an action brought to recover damages for personal injuries sustained by the plantiff while a carpenter in the employ of the defendants,it appeared that the defendants’ foreman sent the plaintiff on a steamship to build a temporary structure; ihat on the day previous to the accident, the plaintiff had complained to the foreman who engaged and discharged the workmen that a workman named Spausta was very careless and that he then told the foreman that he would not work with Spausta; that when the plaintiff began to‘work on the •day of the accident, Spausta was “following ” him driving nails; that- the plaintiff then said to the foreman that he “ did not like to work with this man; ' that he was careless in his work, or in driving nails; ” that the foreman replied, “All right; y.ou go ahead where you are; ” that Spausta was not. then work? ing in. proximity -to, the plaintiff and that t-he latter vyent to work alone with no one-about him; that about - ten minutes later, upon hearing- a noise,' the plaintiff looked around and was struck in the eye with a nail -which Spausta, who was about three feet from the plaintiff, was attempting to drive.
    Evidence was given tending to show that" the flying of a nail is not usual unless 'the workman driving it is very "careless, and also that .the nail was not broken. The plaintiff did not require a companion in his work,.and had never worked with Spausta as a mate. ; ■
    
      Helcl, that it was improper for the court to dismiss the plaintiff’s complaint;
    That it was incumbent upon the plaintiff to show by proof of specific acts that Spausta was incompetent and unfit for the work allotted to him, and that this, unfitness was known or should have been known to the defendants;
    That it could not be said that the plaintiff’s case was devoid of such proof, as ■ the jury might properly infer, -from the statements made by the plaintiff to the foreman on the day previous to the accident and on the day of the accident, and from the answer made by the foreman to the latter statement, an admission on the part of the defendants to the plaintiff that Spausta was unfit for the . work, or at least to work near theiplaintiff,
    That the case presented a question for the jury as to whether the plaintiff, in the exercise of due care and prudence, in view of all the circumstances, had not the right to begin his work and to pursue it on the assumption that he was not to work in proximity to Spausta;
    That if the plaintiff, in the exercise of such care and prudence, was justified in such assumption, he was not precluded from recovering by the fact that the injury wasklue to Spausta;
    That under the circumstances it could not be said, as a matter of law, that, despite the foreman’s assurance, the plaintiff, with as full knowledge of Spaustais incompetency as had the defendants, by continuing to work witli Spausta,. assumed the risk of working with him. , - '
    Appeal by the'plaintiff, Charles F. Allcot, from a-judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk, of the county of Queens on the 3d day of March, Í904, upon the dismissal of the. complaint by direction of the court after a trial at the Queens County Trial Term.
    
      E. J. Heilner, for the appellant.
    
      George Gordon Battle [Frederick E. Fishel with him on the brief], for the respondents. .
   Jenks, J.:

The action is by servant against master for negligence. The court dismissed the. complaint at the close of the plaintiff’s case, on the ground that no negligence had been shown. I think that this was error.

The plaintiff, a carpenter, testifies that defendants’ foreman sent him on a steamship to build temporary structures. On the day previous, the plaintiff had complained to the foreman, who engaged and discharged ■ the workmen, that defendants’workman Spausta was very careless, and he then said that he would not work with Spausta. On the day of the accident, Spausta was on the ship driving nails. The plaintiff began to work, and Spausta was “ following ” him. The plaintiff then said to this foreman that he “did not like to work with this man; that he was careless in his work, or in driving nails,” and the foreman answered: “All right; you go- ahead where you are. ” The plaintiff did not require a companion, and he had never worked with Spausta as a mate. Spausta was not then working in proximity, to the plaintiff, but the latter went to work alone, with none about him. Ten minutes after, upon hearing a noise, the plaintiff looked around and was struck in the eye by a flying nail which Spausta, then about three feet distant, was attempting to drive into wood. There is evidence that the flying of a nail of such a size is not usual unless the workman driving it is very careless, and also evidence to justify the inference that the nail was not broken.

I know the rule that there must be some proof that Spausta was incompetent and unfit for the work allotted to him, and that this unfitness was known or should have been known by the defendants (Park v. N. Y. C. & H. R. R. R. Co., 155 N. Y. 215, 219), and that incompetency must be shown by proof of specific acts, and then that the master knew or ought to have known* of such incompetency. (Ibid.) It is said that the plaintiff’s case is bare of such proof. But I am. of opinion that a jury might be permitted to infer an admission on the part of the defendants to the plaintiff that Spausta was unfit for this work, or at least to work near the plaintiff,, from the statement of the plaintiff to the defendant’s foreman, who had the power of employment and discharge, that the man “ was a very careless worker ” and plaintiff would not work with him, followed by the statement on the day of the accident “ that he was careless in his work, or in driving nails,” that plaintiff “ did not like to work with” him, and the answer of the foreman specifically made to the latter statement, “ All right; you go ahead where you are.” In considering the. force of this answer it must ha borne in mired that the plaintiff testifies that' Ms work did not require a mate, that he had never worked with Spausta, had nevermafed with him, and that Spausta was not working where “ I was when I went to work.” These facts bear upon the question whether the. answer was not an assurance that the protest was heeded and that tkeplaintiff might continue at liis work under its present conditions, and that, therefore, Spausta would not be put at work nearby. Shear-man and Redfield on Negligence (Vol. 1 [5th ed.], § 215) say : “ Nor, indeed, is any express promise or assurance from the master necessary. It is sufficient, if the servant may reasonably infer that the matter will be attended to.” In the- case cited by the authors as-authority for this principle (Northern Pacific R. R. Co. v. Babcock, 154 U. S. 190) the court, per White, J., say: “ The proof showed, or-tended to show, that notification by the engineer to the foreman and -master mechanic of the existence of the defect- was given some ten or twelve days before the accident, and. that at the time there was an impression created in Mmvró’s mind that it was to be remedied.” (Italics- are mine.) The threatened danger was the proximity of Spausta, aud there is no proof but that the foreman by an order to Spausta, who was nearby (for the plaintiff says Spausta. was then following him) could have averted it.

I think that the case presented a question for the jury whether the plaintiff, in the exercise of due care and prudence,, in view of his statements and protests to the foreman, of the answer of the foreman, and of the facts-that Spausta was not at work when plaintiff went to work, that Spausta followed him before the protest, was- not sent with him after the protest, but that plaintiff went to work alone and began work with none about him, had not the right to-begin his work arid to pursue it on the assumption that he ivas not to work in proximity to Spausta. If the plaintiff, ire the exercise, of such, care and prudence, was justified in such assumption, then lie is. not precluded from recovery by the fact that the injury- was due to* Spausta; but the question arises whether the injury was due to any failure of the defendants to discharge the obligation of- riaaster te servant. (Laning v. N. Y. Central Railroad Co., 49 N. Y. 521; rule approved in Powers v. N. Y., L. E. & W. R. R. Co., 98 id. 274, 279; Gibson v. Erie Railway Co., 63 id. 449, 453; Sweeney v. Berlin & Jones Envelope Co., 101 id. 520, 523. See Allen, J.’s, explanation of his dissent in Laning's Case, supra, in Malone v. Hathaway, 64 N. Y. 5, 11; Cooley Torts [2d ed.], 661; S. & R. Neg. [5th ed.] § 215; Wood Mast. & Serv. [2d ed.] § 378; Thomp. Neg. [2d ed.] §§ 4664—4667; Lyttle v. Chicago & West Michigan Ry. Co., 84 Mich. 289; Greene v. Minneapolis & St. Louis Ry. Co., 31 Minn. 248; Hough v. Railway Co., 100 U. S. 213, 225; Rice v. Eureka Paper Co., 174 N. Y. 385.)

It. seems to me that this case does not necessarily present the feature of a continuance of the plaintiff to work with Spausta,. with as ■full knowledge of Spausta’s incompetency as had the master, and, "therefore, despite the assurance or promise of the master, plaintiff’s •continuance of the risk with knowledge thereof equal to the master’s defeats- his recovery under the rule of Marsh v. Chickering (101 N. Y. 396), and kindred decisions. The risk to be removed «could .have been removed at once, for the complaint was made to "the foreman who was empowered in the premises and Spausta was -at hand, so that presumably a command or direction to Spausta would have sufficed. Continuance of plaintiff’s work, then, did not "necessarily mean continuance of the risk. It does not appear that plaintiff went to work with Spausta, or that he saw Spausta come to work in his vicinity, or knew that Spausta was at work there "before he looked around and was thereupon injured, or that the place where Spausta then worked was within the vision of the plaintiff while he labored at his own task, or that Spausta’s work necessarily informed plaintiff of Spausta’s presence. And it does "follow that, as the plaintiff began work alone, with none about him, and only worked ten minutes before the accident, Spausta could have been in his vicinity for as long as ten minutes, and for aught that appears he may have been driving his first nail. The case did not in this aspect present a question of law that warranted a dismissal on the ground that the plaintiff continued to incur the risk.

Hibschberg-, P. J., Bartlett, Woodward and Hooker, JJ., «concurred.

Judgment reversed and new trial granted, costs to abide the event:  