
    Bernard O’Connall, as Administrator, etc., of Edward O’Connall, Deceased, Respondent, v. The Thompson-Starrett Company, Appellant.
    
      Master and servant — duty of the master to supply a sufficient number of men to do the work —when a foreman is a fellow-servant — effect of his failure to use appliances and men furnished by the master—when the servant assumes the risk essential to the situation.
    
    A master’s duty to his servants includes that of furnishing a sufficient number of competent workmen to perform the service required, and if a foreman having practical charge of the work and control of the men, and who, in directing the performance of the work, is the alter ego of the master, sends an insufficient number of men to perform a particular piece of work, and one of the men sent to do the work is injured in consequence of the failure to provide sufficient assistance, the master is liable for such injuries.
    Such a foreman, in respect to the methods adopted in the prosecution of the work, so far as they are mere details of the performance thereof, is a fellow-servant. Consequently negligence on the part of the master cannot be predicated upon the adoption by the foreman of an improper method in the performance of the work.
    Where the place in which the servant is required to work has been made as safe as the prosecution of the work will permit, and the conditions affecting its safety are clearly visible to the servant, the master is relieved from liability in this respect, even though the place is. inherently dangerous. In such a case. the servant assumes the risk of the situatiOn.
    If the master furnishes proper appliances and si~fficient men to operate them and a competent foreman to direct and oversee the work, whether such fo~eman be the alter ego of the master or otherwise, the master is notliable for an injury r~su1ting to one of the men because of the failitre of the foremp~n to make use of such appliances and men.
    Under such circumstances ithe foreman is to be regarded as a co-servant, of the injured person.
    APPEAL by the defendant, The Thompson-Starrett Oomp~ny, from a judgment of the. S~preine. Oourt in .fa~,or Qf the piaintiff~ entered in the office of th•e c'erk of the cOunty of Ne~ York on the 29th day of January, 1902, 1~pon the verdiOt of ~a jury for $1,100, and also from. an order entered iii. said clerk's office oil t1~e 31st day of January,. 1902, denying the defo~.d.ant's. .mot~~n for a new trial made upon tile minutes.
    John Ford, for the appellant.
    John J. Delany, for the respondent.
   Hatch, J.:

This action is brought to recover damages for injuries received, resulting in the death of plaintiff's intestate, which it is claimed were produced by the negligence of the defeiTdant.

The plaintiff's intestate was employed by the defendant at. the corner of Fifth avenue ~nd Fifty-fifth street where an excavation for a building was being made. While employed iii lowering and putting in place certain, tjrnbers f~r th~ support of a bi~idge used 1~y the publi~ as a sidewalk over the excavation he. -was thrown from' a timber upon which he was. standing, pre~ipi'tated ipto the excavation and coming in contact with one Qf `the supports therein, sustained the injuries resulting i~n his death..

The complaint avers a basis upOn which to found the negligence~ of the defendant, that the latter failed to discharge its duty to prOvide a safe place for the perforrn~nce o~ the work ~hi~h devolved upon the deceased; that such failure consisted in an omission to supply necessary materials, appliances and deviQes, and also in omit~ ting to furnish a sufficie~t number of sei~vants, agents and employees to perfo'rm the work which the de~eased was required to do; and'that by reason of these omissions upon the part of the defendants the accident occurred and the injuries were sustained.

It is with the greatest difficulty, indeed it is practically impossible, from the. manner in which this record is made up, to determine just what was the proximate cause' of the accident. This condition is due to the fact that a cut of the excavation, supporting timbers, shoring braces, etc., appears in the case, and there was also used in connection with the testimony upon the trial a model of the tackle block and fall which was being used by the deceased at the time when the accident happened. Instead of being any aid to an understanding of the situation and the method in which the fall and tackle block was used, it confuses the whole matter. The cut is not explained so as to be intelligible, and does not show the relation which the timbers and work bore to the accident, while the witnesses in giving testimony indicated, in explanation of the same, how the model worked, and the various positions which it and the timbers occupied in the conduct of the work. In the record the parties have contented themselves by inserting the words “ indicating ” and illustrating ” without giving any description of what was meant by the testimony of the witness when he indicated and illustrated, the result of which is to make the record practically unintelligible so far as the particular things which caused the accident are concerned.

After a careful study, however, of the record we are enabled to gather that the evidence upon the part of the plaintiff tended to establish that one McDonald was the foreman of the defendant, had practical charge of the work and control of the men, and stood in respect to such relation as the alter ego of the master in directing the performance of the work. It appeared that McDonald, for the purpose of supporting the bridge, directed the plaintiff’s intestate and his brother to clean out the space underneath, rig up the tackle block and fall and lower a timber into place, and while they were engaged in this work and .had .the timber partially lowered, the deceased knocked off a cleat which furnished some support to some part of the timbers, that this occasioned a “ kicking ” of the timber which was being lowered, and such movement precipitated the deceased into the excavation. While it is extremely difficult to understand the claim of the plaintiff as to the particular duty which rested upon the master in this connection and which it failed to perform, yet we gather from the whole case that in some manner the master was at fault in failing to provide a sufficient number of men to properly lower the timber into place.

Upon this subject the testimony seems to disclose that timbers for this purpose had been lowered many times before, and that prior to the time in question there had always been from three to four men assigned to perform this work and that two were not enough to properly perform the work with safety to those engaged. Upon this subject the testimony of the plaintiff is distinct and .to the effect that four men were required to make use "of the appliances furnished in lowering the timber while only two were designated upon the occasion when the accident happened.

It is a well-settled general proposition of law that a, master is required in the discharge of his duty to furnish a reasonably safe place for the performance of the work required of the servant, to provide adequate and suitable tools and implements for his use, arid when they are needed a sufficient number of .competent workmen to assist in the performance of the service required to be rendered.. (Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y. 368; Benzing v. Steinway & Sons, 101 id. 547.)

Some evidence was given tending to show that it was necessary in the proper prosecution of the work to erect an upright for the* support of- the beam when it was being lowered into position and that this, was not supplied, but that the foreman McDonald directed that the timber should be lashed in some form to other timbers and that such lashing was intended to take the place of the upright which had been previously used. . It appeared, and the jury would have been authorized to find, that the deceased had been properly and fully instructed as to the method and manner of performing-this work and of lowering the timber, that he knew how to do it- and had been intrusted with its performance as a leader of the men engaged thereon. So far as the prosecution of this work in lowering the timber and the methods adopted were mere details in the° performance of the work, there could be no fault upon the part of the master, even though the particular manner in which it was done-was by the direction of the foreman, and no liability could, be predicated thereon against the master for the method in which the work was performed, for under such circumstances the foreman would stand, in relation thereto, as a fellow-servant. (Perry v. Rogers, 157 N. Y. 251.) So far as the place itself is concerned, it is evident that no liability can be founded thereon against the defendant." The excavation, all of the timbers and the support for the same were clearly visible, and of these surroundings the deceased was accurately and fully informed. Besides, the place was as safe a place to work in respect to these conditions as was permissible for the prosecution of the work. The master, therefore, was relieved from liability in this respect, even though the place was inherently dangerous. The place itself was a risk which the servant assumed. (O’ Connell v. Clark, 22 App. Div. 466.)

Eo complaint seems to have heen made but that the tackle block and fall was properly constructed and reasonably safe for the purpose required. So far, therefore, as the negligence of the defendants in this case is concerned it must come to rest, if at all, solely upon the failure of the foreman to supply a sufficient number of men to properly perform the work. Upon this subject the evidence of the plaintiff is sufficient to authorize a jury in finding that four men were required to perform this work properly and safely, and that the direction which the foreman gave was to do it with two. Upon this point there is some conflict in the testimony. McDonald states that he directed the deceased to take his brother and get -the rigging up ready to lower the posts, and if he needed any help after the rigging was ready he would furnish it. He further states that deceased had authority to call men employed about the work'to assist nim without any direction or further request upon him, and that he also told him to lower the posts as he had previously done. Upon cross-examination he testified that he would not be positive that he made use of the Words constituting this direction, and finally, that he did not think he gave such direction, and was in error concerning it. We think that within the authorities above cited, as well as others a duty was devolved upon the master to furnish a sufficient number of men to properly perform this work, and if the two were not, sufficient for that purpose, then that McDonald as the representative of the master was required to furnish more, and that negligence may be predicated of his failure so to do. If the deceased was vested with authority to call other men to his assistance, of if McDonald directed him, when he had the rigging in place, to apply to him for assistance and the deceased failed to avail himself of the authority, 'or the direction, but in connection with his brother assumed to do the work, then he clearly took the risk upon himself of performing it with what assistance he had and would himself be guilty of negligence in failing to secure" the requisite assistance if thereby he suffered injury. If the master furnished proper appliances and men to operate them, and the injury was occasioned by the failure to make use of them, even though such failure was attributable to the act of the "foreman,, there can be no recovery. When the master • has furnished appliances and men and competent foreman, whether such" foreman be the alter ego of the master or otherwise, to direct and oversee the work, he has discharged his full duty, and the omission to make proper use of the same resulting in injury does not charge the master ; and the foreman, under such circumstances is to be regarded as. a co-servant of the injured person. (Hussey v. Coger, 112 N. Y. 614.) Considering all of the testimony which we aré able to understand, we conclude that a question may have been presented upon this subject which might be properly left for determination by the jury. Such question, however, is not available to the plaintiff in the present state of this record. It may have been that, by the use of the diagram, or cut, the model and the explanation given of the same by the witnesses, sufficient appeared to show that the proximate cause of the accident was the failure to furnish a suitable number of men for performing the work. • As the record appears upon this appeal, it is utterly impossible to reach a conclusion, or to satisfactorily determine that the failure in this respect was the proximate cause Of the accident. What the position of the timber was at the time when the deceaséd knocked off the cleat, what relation it bore to the" timber being lowered, how it “ kicked,” or what occasioned it to kick,” is beyond the power of man to decipher from this record ; nor does it appear that the presence or absence of a proper number of men would have prevented what occurred when the cleat was knocked off. The knocking off of the cleat was clearly a detail of the work, and if that alone precipitated the plaintiff from the position he occupied into "the excavation, no liability would attach to the defendant for that result. It must in some form appear that the presence of these men would or might have held the timber in such a position that it would not “ kick ” when the cleat was removed. The case is barren of any evidence from which we can infer that such failure caused the timber to “ kick ” and precipitate the deceased into the excavation.

If the. absence of the proper number of men was not the proximate cause of the accident, then it is of no consequence whether the master omitted his duty in this respect or not. The accident must flow from the omission of duty; otherwise there is no basis upon which liability may be predicated. Upon the present record such fact is not established, nor does sufficient evidence appear therein to authorize the jury so to find. Consequently there was nothing in the case which- authorized a submission of the defendant’s negligence upon this question to the jury.

It is evident from what has preceded, that if the evidence, with the explanations of the model and the cut by the witnesses, would have been sufficient to authorize the submission of this question to the jury, it is also evident that the defendant was entitled to full and complete instructions concerning the rights and liabilities of the respective parties. In the most favorable view which can be taken of this case for the plaintiff, it is clear that the question as to whether the defendant omitted any duty which it was required to do is extremely close.

An examination of the charge of the learned court does not aid us in determining what was the proximate cause of this accident. It is quite as silent respecting the particular thing which caused the deceased to fall into the excavation as is the evidence appearing in the record. The court charged generally concerning the duty and obligation of the master to the servant and seems to have submitted as one of the questions, upon which the liability of the defendant might be founded, as to whether or not the deceased received sufficient instruction as to the method and manner of performing the work. Upon this subject, however, the proof was undisputed that the deceased had been employed in lowering all of the posts which had been lowered prior to the one in question, that he had been fully instructed upon such subject and was chosen for his superior knowledge in that connection as a leader of men employed to do that work. There is not a particle of proof upon the part of the plaintiff tending to contradict this testimony. On the contrary, it ■appears that the deceased’s brother, who was employed with him at •the time of the accident, had full information with respect thereto and he testified concerning the same upon the trial. We think it is ■ a fair presumption that, if the brother knew of the method of performing this work the deceased also knew it and it does not seem that further instruction would have added to his knowledge upon the subject.

The further submission by the court seems to have been based •upon the failure of the master in supplying proper material, appliances and a sufficient number of servants to assist about the work. As we have already seen, the only basis upon which the negligence of the defendant could be predicated related to the last consideration. The jury in this case could not arrive at a correct disposition of the question involved unless there, was laid before them the obligations and duties of the master upon the one part and the risks assumed by the deceased upon the other. Upon this subject the defendant made several requests to charge, some of which the court ■charged and some of which were refused. Those that were refused •were seven in number, six of which we think stated a correct rule of law, were pertinent in their application to the casé and should have been charged-within the doctrine as announced in Cullen. v. Norton (126 N. Y. 1); Perry v. Rogers (supra); Laning v. N. Y. C. R. R. Co. (49 N. Y. 521); Crown v. Orr (140 id. 450); Wright v. N. Y. C. R. R. Co. (25 id. 562). It is not necessary to call attention . in detail to these particular requests, as. the rule which we have already laid down is sufficiently explicit for the direction of the court upon the new trial. If the negligence ■ of the defendant was established within the rule which we have laid down as governing this case it has not been made to appear in the present record, nor has any evidence been adduced from which this court can see-that the failure to furnish a sufficient number of men for the work was the proximate- cause of the accident' or that it constituted an omission of ■duty upon the part of the defendant. If it did so appear upon the ■trial it devolved upon the plaintiff to make it appear in the record submitted to this court; and as it- was not so made to appear, that, as well'as the errors to which we have called attention, requires a : reversal of this judgment.

It follows that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

Yan Brunt, P. J., Patterson and Laughlin, JJ., concurred; Ingraham, J., concurred in result.

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