
    SPILLANE v. EASTMANS CO. OF NEW YORK.
    (Supreme Court, Appellate Term.
    December 26, 1900.)
    Master and Servant—Injury to Servant—Negligence ot Fellow Servant.
    A carpenter engaged in the construction of a building cannot recover against his employer for injuries received by being struck by rubbish thrown from an upper floor by a laborer employed by their common master to remove such rubbish, the negligence being that of a fellow servant.
    Appeal from city court of New York, general term.
    Action by Edmund Spillane against the Eastmans Company of New York. From a judgment of the general term of the city court of the city of New York (65 N. Y. Supp. 668) affirming a judgment in favor of plaintiff, defendant appeals.
    Reversed.
    The nature of the action and the material facts are stated in the opinion.
    Argued before BEEKMAN, P. J., and GIEGEBI'CH and O’GORMAN, JJ.
    Nadal, Smyth, Carrere & Trafford (L. Sydney Carrere and George O. Redington, of counsel), for appellant.
    Joseph I. Berry, for respondent.
   GIEGERIGH, J.

The plaintiff, while at work for the defendant as a carpenter, employed by the day, on the ground floor of its building, on March 16, 1896, was injured by the fall of a shutter which a laborer named John Leonard, in the defendant’s employ, had thrown from a window above. The defendant was at the time of the accident a domestic corporation carrying on the business of a wholesale butcher, and conducting a slaughter house at Fifty-Ninth street and Twelfth avenue, in the city of New York. At the time of the injury in question it was engaged in putting up, in the space formerly used as an alley for the driving in of cattle, an addition to the building, with a door for the admission of cattle. Upon such work the defendant employed in all about 20 men, including a superintendent, two or three foremen, and bricklayers, carpenters, and laborers under them. The front of such addition was open on the ground floor. Above that carpenters had finished laying the flooring, and on the exterior a scaffolding was erected for the purposes of the work. The plaintiff assisted in the building of the scaffolding, the floor of which was above 6 feet from the ground. The ceiling was above 11 feet from the ground, thus leaving an open space of about 5 feet between the flooring of the scaffold and the ceiling of the ground floor, in which the plaintiff was at work sheathing up the front of the building (a narrow space of about 12 feet), by direction of Ms foreman, one Tracy. While the plaiiftiff was so occupied, Leonard, a day laborer employed by the defendant to do miscellaneous work in the building of this addition, under orders of Tracy, who was also his foreman, was cleaning up the room above, after the carpenters had finished, and while so doing threw out a shutter, or a part of one, which he found among the rubbish. The shutter, in its descent, struck the scaffolding, and went through the open space referred to, hitting the plaintiff and causing the injury complained of. At the close of the entire case the defendant moved ■for a dismissal of the complaint upon the ground, among others, “that it was clearly shown that the accident happened, if at all, through the negligence of one Leonard, a fellow servant of plaintiff,” which motion was denied, and the defendant took an exception. The trial justice, in his main charge, adverting to this subject, said:

“I will withdraw from your consideration the question as to whether this injury was caused by the negligence of a co-servant, and I charge you, as® a matter of law, directly, that the evidence does not show that the witness Leonard was a co-servant with the plaintiff in that work which he was employed to perform at the place where the accident occurred.”

The defendant’s counsel having excepted to such instructions, the trial justice stated that under the evidence the plaintiff and Leonard were not co-servants, whereupon another exception was noted in behalf of the defendant.

We think the trial justice erred in holding, as he did, that the plaintiff and Leonard were not fellow servants. When the accident -occurred both were employed and paid by the same common master, for whom they worked in the same building under the same foreman, in the same common employment, with an immediate common •object,—the erection of the addition to the building in question. Under these circumstances the plaintiff and Leonard were" fellow ■servants, although their special lines of work were different. Butler v. Townsend, 126 N. Y. 105, 111, 26 N. E. 1017; Armour v. Hahn, 111 U. S. 313, 4 Sup. Ct. 433, 28 L. Ed. 440; Steamship Co. v. Merchant, 133 U. S. 375, 10 Sup. Ct. 397, 33 L. Ed. 656; Brynes v. Railroad Co., 36 App. Div. 355, 356, 55 N. Y. Supp. 269; 1 Shear. & R. Neg. (5th Ed.) §§ 234, 239, 241. And the case falls directly within the well-settled rule which exempts the common master for injuries to a servant caused by the negligence of another servant. The case at bar is distinguishable from that of McTaggart v. Eastmans Co., 28 Misc. Rep. 127, 58 N. Y. Supp. 1118, affirmed in 27 Misc. Rep. 184, 57 N. Y. Supp. 222, for the reason that it there appeared that the plaintiff, a hod carrier employed in the same temporary work of repair or new construction undertaken by the defendant, was injured through the carelessness of the driver of one of the defendant’s wagons used in the .defendant’s general business of a butcher, in striking his wagon against a ladder which the plaintiff was descending, thereby causing him to fall to the ground.

The judgment should therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event. "All concur.  