
    Charles Naniko, Respondent, v. Interborough Rapid Transit Company, Appellant.
    First Department,
    November 4, 1910.
    Railroad—negligence — injury to employee working beneath" elevated railroad — injury to suspended scaffold by passing vehicle — incompetency of fellow-servant — erroneous charge.
    In a common-law action against an elevated railroad brought by a servant who while working in a canvas scaffold suspended beneath the structure was injured by reason of the fact that the canvas was torn by a passing truck so that he was precipitated to the street, it is error to refuse to charge that there is no proof that a person stationed in the street by the defendant to warn vehicles not to pass under the scaffold was incompetent where there is no proof of incompetency whatever save that in the single instance when the accident occurred he failed in his endeavor to induce the truck driver to avoid the scaffold.
    As the action is at common law the person stationed to warn vehicles was the fellow-servant of the plaintiff, and proof of a single act of casual negligence does not per se tend to prove that he was so. careless and imprudent as to be unfitted for the position.
    •Moreover, a master cannot be charged with negligence in employing an incompetent fellow-servant in the absence of proof of any specific acts of incompetency of which the master knew or ought to have known.
    If the accident was caused by the recklessness or mismanagement of the truck-man in refusing to accede to the watchman’s attempt to induce him to avoid the scaffold, the railroad cannot be charged with negligence in failing to provide additional watchmen.
    Appeal by the defendant, the Interborough Rapid Transit Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19tli day of March, 1910, upon the verdict of a jury for $500, and also from an order entered in .said clerk’s office on the 18th day of March, 1910, denying the defendant’s motion for a new trial made upon the minutes.
    
      Bayard H. Ames, for the appellant.
    
      Harry J. Sondheim, for the respondent.
   Dowling, J.:

The plaintiff was a painter in the employ of the defendant, and on August 11, 1908, was directed, in the course of his duties, to paint a bridge forming part of the platform structure of the elevated railway at One Hundred and Forty-ninth street and Third avenue station, in the city of Hew York. The method he was instructed to follow was,. to enter a canvas scaffold, fifteen to eighteen feet long, which had previously been suspended under the bridge and which was attached thereto, and into which the men went over the handrailings, carrying their paintpots with them. The bridge itself was some twelve to fourteen feet above the street, and when the canvas was empty its lower surface was some ten or eleven feet above the street* but when the men were working within it, it sagged down so that it was perhaps seven and a half to eight and a half feet, or at the outside ten feet above the street. This canvas ran across a part of the highway and.a short distance over the sidewalk, and was about five or ten feet south of the southerly corner of One Hundred and Forty-ninth street. While the men were working in this canvas a loaded lumber truck coming easterly out of One Hundred and Forty-eighth street turned into and down Third avenue. The stanchion thereof coming in collision with the canvas, ripped it open in such a way that the plaintiff was precipitated to the street and received the injuries whereof he complains. What transpired before this collision is a matter of dispute..

The witness Hehre, who testified that he was employed by the defendant “ to watch ont * * * for wagons or anything that would come along, to protect the canvas, and keep them away and tell them to go to the other side of the street,” further testified that he saw this truck in question coming through the cross street from west to east, and that as the driver turned his horses south,- and swung under the canvas he (Hehre) grasped hold of the inside horse and shouted to the driver to stop, whereupon the driver said, “ That is all right,” and drove right on, while Hehre pulled the horse’s head around. The witnesses Loughlin and Ostrander "testified that they saw Hehre shout to the driver-and-seize hold of thé horse’s head, but the driver went ahead regardless of the shout or the attempted stopping of the horses. In contradiction to this the driver of the wagon, produced as a witness for the plaintiff, testified that although a man did run ont in front of thé team and wave his hands and shout to him, it took place after he had struck the canvas. He said that he saw the canvas hanging, but thought that he could clear it, and denied that Hehre had ever taken hold of the horses.

This action was commenced under the Employers’ Liability Act (Laws of 1902, chap. 600), but when finally submitted to the jury it was so submitted upon the theory of a common-law liability due to defendant’s negligence in either (1) not guarding more thoroughly the place where plaintiff worked, or (2) in stationing a person to. guard the place who was negligent in the performance of his duty.

' The question of plaintiff’s contributory negligence was expressly waived. . >

The learned trial court first charged the jury, at the request of the defendant’s counsel, that if the watchman was a competent man and neglected his duty, then plaintiff could not recover, for his act was the act of a fellow-servant, for which the defendant would not be liable. This would appear to have reduced the defendant’s liability to the first theory — that it did not provide sufficient guards or watchmen for the canvas. But the court went further; the jury were instructed that if they found that the watchman was competent their verdict should be for the defendant; that if they found that. Hehre was a competent man then the company was not liable, but they were to judge whether he was competent or not, on all the circumstances in the case taking into consideration if they arrived at that question, “ that he did not watch.”. Thereupon defendant requested a charge that there was no evidence in the case that Hehre was not a competent man. This request was refused, and we think improperly, for there was absolutely no proof in the case of any incompetency on the part of Hehre claimed or shown save upon the occasion in question, and not only did the court charge without objection that Helire’s own negligence upon the occasion in question would have prevented a recovery by plaintiff, but it is well established that a single act óf casual negligence does not per se tend to prove a" party to be careless and imprudent arid unfitted for a position requiring care and prudence. (Baulec v. New York & Harlem R. R. Co., 59 N. Y. 356.)

Nor was there evidence in the case of any specific acts of incompetency upon the part of the watchman which the" master knew or ought to have known. (Park v. N. Y. C. & H. R. R. R. Co., 155 N. Y. 215.).

In conclusion the jury were charged that even if they found that the watchman did not discharge his duty of watching, there still would be left for their consideration the question of whether or not, on all the facts, the placing of this canvas with only one man to guard it, was a sufficient discharge of defendant’s duty to act as a reasonably prudent person would have acted under the circumstances.

The watchman was placed there to guard against the possibility of just such an event as took place. He was looking for vehicles coming south to divert them to the other side of the street. He did see this truck coming south and by a preponderance of evidence it is fairly established that he not only shouted out to the driver, but took hold of one of the horses, in an attempt to stop their progress. The driver admits that he saw-the canvas but thought that he could clear it

If Hehre, the watchman, did not do as he says he did, that is, shout out and endeavor to stop the progress of the horses, but did as the drivei claims, that is, shouted out after the accident only, then the negligence was that of Hehre and under the law of this case the defendant is not liable; if, on the other hand, Hehre’s corroborated testimony is accepted as true, then he had done all that a prudent and reasonable man could have done to prevent the accident, which would then have been due to the recklessness or mismanagement of the driver of the truck, and the absence of more watchmen in no way caused or contributed to the accident.

It follows, therefore, that the judgment and order appealed from must be reversed, and a new trial ordered, with costs to appellant to abide the event.

Ingraham, P. J., Laughlin, Scott and Miller, JJ., concurred.

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