
    Lauris Tendrup, Resp’t, v. John Stephenson Co. Limited, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    Negligence—Liability of employer.
    A workman had heen ordered by Ms employer to put a certain, machine in position, and in order to do so it became necessary to unfasten and remove a stairway. While the stairway was in this insecure condition a fellow workman, who was ignorant of the fact, in attempting to ascend it, was thrown down and injured. Held, that as the act from which the injury resulted was done by order of the employer or Ms alter ego, he was liable for negligence, particularly as he owed his servant the duty of furnishing them a safe place to prosecute their work. Bartlett, J., dissenting.
    
      Appeal from a judgment entered upon the verdict of á jury, and from order denying motion for a new trial.
    
      Wm. Allen Butter, for app’lt; J. Edward Swanston, for resp’t.
   Brady, J.

It will be perceived on reading the opinion of Bartlett, J., that the act of removing the stairway was one authorized by the defendants, the negligence of the so-called fellow w'orkman being his leaving the stairway without a guard or notice, and without being fastened while he was seeking the means of finishing his work of removaL This makes a vast difference between this case and that of Crispin v. Babbitt (81 N. Y., 516), to which Justice Bartlett refers. • There the injury was occasioned by an act with which the master had no connection directly or indirectly, and was one of carelessness. The fellow workman carelessly let on steam and the plaintiff was injured.

The true rule, I apprehend, said Church, Oh. J,. is to hold the corporation liable for negligence in respect to such acts and duties as it is required to perform as master, without regard to the rank or title of the agent instructed with their performance. As to such acts, the agent occupies the place of the corporation, and the latter is liable for the manner in which they are performed. Here, it appears, that Jeblick, the fellow workman, had been ordered by the defendant’s foreman to put a machine in position, to do which it was necessary to remove the stairs. They were removed, and hence the accident, for the reason that they were not secured, of which the plaintiff was ignorant. The distinction made by the cases bearing upon the’ obligations and responsibilities of employers for the carelessness of one fellow workman, resulting in the injury of another in the same common employment, are somewhat shadowy, and therefore, difficult of application; but where the act causing the injury is an independent one, and done by order of the employer or his alter ego as in this case, the liability of the employer seems to be settled, particularly when it is within the principle that he owes his servant the duty of furnishing him a safe and proper place to prosecute his work. Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y., 368. In addition to this it may be said, that the case of Berea Stone Co. v. Kraft (31 Ohio St. 287), and quoted by Earl, J., in his dissenting opinion in Crispin v. Babbitt (supra), exactly hits this case. Indeed, that opinion will be found sustained by authorities, the doctrines of which make the defendants here liable for the plaintiff’s injuries. I am decidedly in favor of the affirmance of the judgment.

Daniels, J concurs.

Bartlett, J.

(dissenting).—There was sufficient evidence to warrant the finding of the jury in favor of the plaintiff, unless it ought to have been held that his injuries were sustained in consequence of the negligence oí a fellow servant, for which the employer was not responsible.

The plaintiff was a carpenter employed in the car factory of the defendant. He worked on the first floor of the building, and in the course of his employment was called upon from time to time to go into the basement. The first floor did not wholly cover the basement, but was open at one end.

In order to allow the workmen to get up and down, a wooden stairway was made for use between the first floor and the basement, and was placed with the bottom resting on the basement floor and the top resting against the beam which supported the boards of the first floor. These stairs were fastened below by wooden cleats nailed to the flooring and above by means of nails.

The plaintiff, who was at work on the first floor, went down this stairway to the basement in order to saw some boards. After performing this task, he started to return by the same stairs. When he had nearly reached the top, the entire stairway fell under his weight and he was thrown backward and knocked senseless.

There is no doubt as to what was the cause of the accident. The stairway had been constructed so that it could be moved from one place to another without much difficulty, and it had previously been moved several times, generally, however, if not always, for the purpose of getting it out of the way for the time being. On the day of the accident, Mr. John Stephenson, the president of the corporation, had directed a workman named Torgensen to change -the position of the stairs about five feet, and Tor-gensen had done so, putting cleats around the bottom and securing it “good and fast.” The stairway appears to have been in this position when the plaintiff went down into the basement. Before he went up again another workman named Jeblick, pried off the cleats, unfastened the stairs, and after moving them about four feet put them up unfastened, but in the right position, against the beam. Leaving them in this insecure condition, he stepped away a short distance to get his hammer and nails. Meantime, the plaintiff, ignorant of what had happened, had partly ascended the stairway, and before Jeblick was able to get back the accident had occurred.

No specific order to remove the stairs, or interfere with them in any respect, had been given to Jeblick, but the foreman had told him to put a large bulky machine called a planer in position, and to do this it was necessary to take the stairs away from the place in which they had been put .'by the direction of Mr. Stephenson. It was in consequence f of this order to remove the planer that Jeblick undertook to change the position of the stairs.

Upon this evidence, it was plain enough that the injuries to the plaintiff were the direct result of negligence on the part of Jeblick, a co-servant in the same employment. The learned trial judge, however, instructed the jury that if Jeblick, who moved the stairs, was guilty of negligence in the matter, his negligence was the negligence of the defendant; and he based this portion of his charge expressly upon the rule that acts which the master as such is bound to perform for the safety and protection of his employees cannot be delegated so as to exclude the master from liability to a servant who has. been injured by an omission to perform the act of duty.

It is necessary to inquire, therefore, what obligation the defendant owed to the plaintiff in respect to the stairway which fell.

A master owes his servant the duty of furnishing him a safe and proper place in which to prosecute his work. Pantzar v. Tilly Foster Iron Mining Company, 99 N. Y., 368.

This includes the obligation to provide a safe and proper means of access to such portions of the master’s premises as the servant is called upon to go in the course of his employment.

The stairway in the present case, when fastened in place as it was evidently designed to be at all times when in use, was not only appopriate for the purpose it was intended to serve, but safe for the workmen who had occasion to pass up or down.

The accident was not attributable to any defect in material or construction, but solely to the fact that the stairs had been left temporarily unfastened.

I do not think it can fairly be held that the master under the circumstances disclosed by the evidence, failed to supply suitable instrumentalities for the safe performance of the work required. But, says the learned counsel for the respondent, it was absolutely necessary for the protection and safety of the workmen that the defendant should not only provide a safe stairway, but that it should be kept at all times in a safe and secure condition. In the first instance, however,. the defendant was not bound to do more than to furnish a stairway which should be safe. This obligation was fulfilled. If proper care was used in the selection of skillful and competent workmen to assist the plaintiff in the performance of h'is duties—and there is no suggestion to the contrary—the fact that the negligence of one of these co-servants had rendered the place where the work was to be done unsafe, did not impose any further duty upon the employer in the absence of notice, actual or implied. ■ ■

Upon being notified that the premises had thus been rendered unsafe, or after such a lapse of time that notice would be inferred, the master will become liable for a failure to maintain the safety of the structure but not until then, if the said place provided was safe and suitable at the outset, when the employment of the servant began.

There is no reason to suppose that the president or any other officer of the defendant corporation ever contemplated that the stairway in question would be used by any of the workmen except when it was securely fastened in position. It is not pretended or suggested that anyone ever directed or sanctionedits employment under any other circumstances. A fellow servant of the plaintiff, who had been ordered to remove a bulky piece of machinery, changed the position of this flight of steps to get them out of the way, but without any specific direction so to do, or as he testified, out of his own idea entirely. He then left them, unsecured, only long enough to go some eight or nine feet for his hammer and nails, when the accident occurred; and it cannot be contended that this brief period of insecurity was sufficient to give the defendant notice that the stairway had become unsafe. To loosen the fastenings, as Jeblick did, move the steps a feet feet and leave them in position, and therefore apparently secure, without warning to any one, was to set a trap for those who might have occasion to come from the first floor of the factory to the basement, or go from the basement to the first floor; but this trap was the contrivance of a co-servant, and in no wise the result of that personal negligence on the part of the employer which is essential to the maintenance of such an action as the present. Cahill v. Hilton, 106 N. Y., 512; 11 N. Y. State Rep., 26.

I think that the doctrine of Crispin v. Babbitt 81 N. Y., 516, applies, and that the act of Jeblick in moving the stairway, was the act of a mere operative, in the course of his employment, and not in the performance of a duty resting upon the master. For his failure to secure the steps as he should have done, the defendant is no more legally responsible under the law to the unfortunate plaintiff than a railroad company would be to one of its employees who was injured in an accident solely due to the negligence of a fellow servant in leaving a switch unlocked.

In my opinion the judgment should be reversed.  