
    Ernest E. Wesel, Respondent, v. The W. F. Powers Company, Appellant.
    Second Department,
    November 28, 1911.
    Master and servant — Employers’ Liability Act — changes made by Laws of 1910 — act of superintendent — competency of fellow-servant.
    The Employers’ Liability Act (Laws of 1903, chap. 600) was intended to create a liability under certain circumstances where none existed at common law, but it did not attempt to define the whole measure of am employer’s duty.
    The liability imposed by the act upon an employer for the negligence of a superintendent does not cover a case of personal negligence on the part of the superintendent in the performance of a mere detail of the work, or a case of negligence on the part of one whose principal duty is that of a fellow-servant but who temporarily and incidentally performed an act in the nature of quasi superintendence.
    As to how far the amendment to the Labor Law made by Chapter 352, Laws of 1910, changes the rule under, the former Employers’ Liability Act, qucere.
    
    If an injured employee has a cause of action both under the statute and at common law he may maintain either action.
    Action by a servant against his master to recover under the provisions of sections 200 et seq, of the Labor Law, as amended, for injuries sustained while working on a printing press by reason of the act of a fellow-servant who is alleged to have been incompetent and whom it is alleged defendant’s superintendent, with knowledge of his incompetency, negligently assigned to help plaintiff.
    Evidence examined, and held, to fail to show that the fellow-servant was in fact incompetent.
    Appeal by the defendant, the W. F. Powers Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 3d day of June, 1911, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the 6th day of July, 1911, denying- the defendant’s motion for a new trial made upon the minutes.
    
      Frederick W. Catlin, for the appellant.
    
      Frank Comesky, for the respondent.
   Carr, J.:

The defendant appeals from a judgment against it for the sum of $880.47, entered bn the verdict of a jury. The parties are servant and master, and the action was brought to recover damages for personal injuries arising from the alleged negligence of the defendant.

At the trial the defendant offered no evidence, and the only-question arising upon' this appeal is purely one of law. The plaintiff was in the employment of the defendant in its printing plant in the city of New York. He was a pressman in charge of a large Whitlock press, which was operated by electrical power. While at work at the machine, on. October 6, 1910, he was required to make some adjustments in the mechanism of the press, to overcome some' temporary defect which appeared in the process of operation. To make these adjustments he was obliged to enter within parts of the machinery of the press. He was assisted by one Freund, a fellow-servant, as a helper in the operation of the press. While the plaintiff was so at work he ordered Freund to put on the electrical power to move forward a portion of the press. This was done several times, as required in making the adjustments. Finally, under directions from the plaintiff, Freund again put on the electrical power, but so unskillfully that the moving part of the machine was advanced too far, thus striking the plaintiff and injuring him quite severely. The immediate cause of this accident was the act of Freund, a fellow-servant.

The complaint set forth two separate causes of action, each of which was based upon the provisions of the Labor Law of 1909 (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], art. 14) as amended by chapter 352 of the Laws of 1910. The plaintiff asserts liability against the defendant on the ground that Freund was assigned to do the work of helping at the press by one Vogel, a superintendent of the defendant, and that Freund was incompetent for such work, and that Vogel knew or should have known of such unfitness. Freund’s incompetency is claimed to have arisen from the fact that he had not had sufficient experience with a press of the particular character of the one involved in the accident. Vogel’s act in assigning Freund to assist in the work is charged as negligence, and the defendant is sought to be held under section 200 of the Labor Law, subdivision 2, as amended in 1910. This provision of the statute imposes liability on the employer for an accident causing injury to an employee, when it arises “By reason of the negligence of any person in the service of the employer intrusted with any superintendence, or by reason of the negligence of any person intrusted with authority to direct, control or command any employee in the performance of the duty of such employee.” The case at bar was submitted to the jury on the theory that the provision of the statute just quoted applied to the facts proved by. the plaintiff. The defendant, attacks the judgment on the claim that no cause of action was shown under this statute or at common law. This provision of the Labor Law is a development and enlargement of subdivision 2 of section 1 of chapter 600 of the Laws of 1902, commonly known as “ The Employers’ Liability Act.” The former statute imposed liability upon the employer when the accident was caused “ By reason of the negligence of any person in the service of the employer entrusted with and exercising superintendence, whose sole or principal duty is that of superintendence, or, in the absence of such superintendent, of any person acting as superintendent with the authority or consent of such employer.” In this respect at least the statute was not merely, declaratory of a common-law rule, but was intended to create a liability under certain circumstances where no measure of liability existed at common law. . The statute did not attempt to define the whole measure of an employer’s duty to the employees, but simply supplemented by specific provisions thereof the rules of liability existing at common law. (Gmaehle v. Rosenberg, 178 N. Y. 147.) Subdivision 2 of section 1 of the act of 1902 was the subject of continuous interpretation by the courts. It was held uniformly that the negligence of the superintendent, or person exercising superintendence, which imposed liability upon the employer, did not cover a case of personal negligence on the part of the superintendent in the performance of a “ mere detail” of the general work, which in itself was not an act of superintendence, or on the part of a person whose principal duty was that of a fellow-servant, and who but temporarily and incidentally performed an act in the nature of quasi superintendence.

When the act of 1902 was re-enacted in 1909 in the Consolidated Laws as a part of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], art. 14), no substantial change was made' in the wording of subdivision 2 of section 1 of the original statute. In 1910, however, a substantial change was made in the wording of this subdivision. As it ' now stands liability arises “ by reason' of the negligence of. any person in the service of the employer intrusted with any superintendence, or by reason of the negligence of any person intrusted with authority to direct, control or command any employee in the performance of the duty of such employee.” The language so used is quite general, and the question whether it was intended to apply to an act of any of the persons whom it describes^ which was not itself an act of superintendence, may be disposed of when it arises. The defendant claims, however, that the statute did not originally, and does not now, apply to a case where the negligence complained of on the part of the superintendent was such as would impose liability on the master at common law, irrespective of the statute. Where this statute in express terms includes a case where the employee had also a cause of action at common law, it has been held by this court that he may maintain his action under the statute as well. (Proctor v. Rockville Centre Milling & Const. Co., 141 App. Div. 900.)

The alleged negligence here complained, of, on the part of Vogel, arose in the exercise of his authority to direct, control or command any employee.in the performance of the duty of such employee,” as the statute prescribes. This brings us to the question whether the plaintiff made out a prima facie case of negligence on the part of Vogel and Freund. If the accident . occurred simply through the negligence of Freund, no liability arose against the defendant, for Freund was concededly a fellow-servant acting at the very time under the direction of the plaintiff. To charge Vogel with personal negligence it was necessary for him to show that Vogel, as superintendent, knowingly and carelessly assigned Freund to do work which he was not competent to do. The only gropnd of incompetency urged against Freund, according to the plaintiff’s testimony, was that he had little or no experience in the feeding and operation of this particular machine. No proof whatever was given that Freund had ever before shown an incompetency in the performanee of his work in that printing shop, although he had been working there the greater part of five years before the accident. There were other presses there, likewise operated by electrical power, and which Freund had worked upon as a helper frequently in a period covering several years. The press on which the accident happened differed from the others chiefly in the fact that it was self-feeding and in the mechanism by which the electrical power was turned on. On this mere circumstance there was not enough to hold Freund as an incompetent fellow-servant to the extent of imposing liability on the master. The mere happening of the accident does not prove incompetency. It could have happened simply from the negligence of an otherwise competent person, and in that case there would be no liability. The physical- cause of the accident was that Freund put on too much power. The plaintiff directed him to put on the power. At this time Freund was standing on the left-hand side of- the press, with his left hand holding down some packing on a cylinder; he had to reach across five feet with his right hand to the controller in order to turn on the power. The position so taken was done by the direction of the plaintiff himself; the operation was a delicate one and involved necessarily considerable risk, however competent the operator.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Hirschberg, Thomas and Rich, JJ., concurred.

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