
    Marguerite Brady, as Administratrix, etc., of Martin Kriese, also Known as Martin Brady, Deceased, Respondent, v. The Pennsylvania Steel Company, Appellant.
    First Department,
    May 6, 1910.
    Master and servant — negligence — injury caused by progress of work — . bridges.
    A master is not chargeable with negligence when the dangerous condition which caused the accident was brought about by the progress of work in which the in j ured employee took part, for the rule as to-a, safe place to work does not apply.'
    
      . Where it appears that a traveling-derrick was- used .-in the-construction of a bridge; that as the work progressed ■ the rails on which, it ran were taken up behind it and laid in front of it; that the ties were held securely iu place ' between the rails and floor beam;' that a piece had been cut from the' center of one of the'ties;'that.after the rails had been removed from-this tie-plaintiff's -. intestate.stepped on the end of onerof the halves so-that it tilted-causing him to fall, no -recovery can he .had:
    Scott, J., dissented.
    Appeal by the defendant, the Pennsylvania Steel Company, n-om 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-Sth day of January, 1910, upon the verdict of a jury for $5,000, and also' from an order, entered-in said clerids office on the 10th day of January, 1910- denying the defendant’s motion, for a new trial made upon tire1 minutes. ......
    
      H. Snowden Marshall of counsel \_Battle <& Marshall, attorneys], for the appellant.
    
      Richard J. ' Donovan of-counsel [Herbert D. Cohen with him on the brief], for the respondent.
   Claeke, .J. :

; This is. the second time that this case has been in this court upon appeal from a judgment in favor of. the plaintiff. In 134 Appellate Division, 372, the judgment was reversed and a new trial ordered ' because the case had been submitted to the jury upon the theory that it was the duty of the master to provide suitable and proper scaffolding for the use of its employees. Weheld that the structure upon which -plaintiff was at work" could not be held to be a scaffold, and reversed the judgment and ordered a new trial.

: Upon thisvtrial the case was submitted- to the jury upon the theory that the master- had failed to -perform his duty to furnish a safe place to the decedent in which to do his worlc. The defendant was engaged in the, construction of the Blackwell’s Island bridge across the East river... The bridge liad two decks. Oil the upper-deck the defendant had installed a traveling derrick called a traveler. The girders ran north and south, and the floor beams east and west, and were bolted fast to the. girders which were permanent. AVooden ties were laid on the, floor beams. . Upon these were laid ordinary railroad 'rails spiked down. So that, while the rails remained in. position the ties were securely fastened. On the rails ran the trucks of the heavy traveler which was moved forward from time to time as the progress of the work required. The rails were about forty-five feet long, and as the traveler was moved towards the center of the river, as the work progressed, the rails and ties behind the traveler were taken up and relaid in front of it.

From the center of one of the ties so fastened there had been cut a piece from three to four feet long in order to make an opening through which a guy had been stretched to support a derrick. This opening had existed some eighteen or twenty months prior to the time of the accident. The two ends of the tie so made, each being, under a rail and resting upon the floor Beams, were securely fastened in position. The ends of the ties extended beyond the rails. On the day of the accident the deceased was acting as a signalman, transmitting orders to the engineer in the traveler for the movement of the steam derricks. The rails and ties behind the traveler were being taken up to be replaced in front of it. The process was to take out the spikes and to affix slings to the rail, which would then be hoisted and swung forward by the derricks. The rail had been loosened about twenty minutes at the time of the accident, and the deceased started forward to give a signal to the engineer when' he stepped on the end of the half tie referred to, which projected beyond the outer rail, and his weight caused it to tilt up and he fell' to the floor below and was killed.

The court charged the jury: “ The relation of master and servant existed between the deceased man and the defendant, and that particular relationship imposed upon the defendant' the duty of exercising a proper or reasonable degree of care in order that the deceased man should be furnished a reasonably safe place in which to render the service that was required of him. That is, it was the duty of the defendant to furnish the plaintiff with a reasonably safe place in which to perform his work. Then there is another proposition of law, namely, that the employee or servant, when he enters upon work, assumes the obvious risks incident'to that work.’ That is, if lie can see that there is a certain risk incident to the prosecution of the work, that is an obvious risk, then he is supposed by the law to assume that particular risk, and if injury happens to him because of that risk he cannot recover. But on the other hand, latent or hidden dangers which are known to the employer and unknown to the servant or employee, and of which the employee has neither warning, information nor instruction are not assumed by the servant or employee. * * * ¡Now it is for you, gentlemen, under the rules that I have laid down for you, to determine whether there was an obvious risk which the decedent ■ assumed, whether he himself was guilty of any negligence on his part which contributed to this injury, and whether the defendant was guilty of negligence in not furnishing to him a reasonably safe place in which to perform the. particular work which, was required of him on that day.”

At the close of the charge, defendant’s counsel said: If your honor please, I except to that portion of your honor’s charge in which your honor charges the jury that it was the duty of the defendant to furnish a reasonably safe place for the decedent to work. I except on the ground that in a case of this sort where the danger is created as the work progresses, that rule has no application. I except to that portion of your honor’s charge in which your honor charges the jury that latent dangers are not assumed by an employee, on the ground that that rule can have no application to the facts in this case. I request your honor to charge the jury that if the jury believe that the work of removing the rails was what caused the tie upon which Brady stepped to become unsafe, then the rule of law which makes it incumbent on an employer to provide and maintain a safe place for an employee to work in, has •no application. The Court: I charge that.”

The facts absolutely establish that it was the work of removing the rails which caused- the tie to become unsafe. There was no dispute about the facts, If this charge was correct, a,nd it was the law of the case, then the complaint should have been dismissed. This charge was utterly inconsistent with the charge as to a latent defect and with the “safe place” charge. That the jury found a verdict for plaintiff in the face of that charge shows that they paid no attention tó it, or- that they were confused by the preceding part of the charge, or that they gave the verdict against the employer upon the ground of sympathy. ITpon this: ground alone ' the judgment should be reversed.

I think it is quite evident that this is one of the cases in which the dangerous condition was made by the very work itself and that the .rule in regard to a safe place does not apply. (Citrone v. O'Rourke Engineering Const. Co., 188 N. Y. 339.) The tie which tilted was sound and firm and safe so long as the rail was spiked thereto. It had continued in the same condition for months. It was the taking up of the rail, to be followed by the removal of the ties which rendered the tie unsafe. This was done but a few minutes before the accident, and in the necessary progress of the wdrk itself. I do not think a cause of action was established.

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

Ingraham, P. J., McLaughlin and Dowling, JJ., concurred; Scott, J., dissented.

Judgment and order i’eversed, new trial ordered, costs to appellant to abide event.  