
    Carrie Wolfinger, as Administratrix, etc., of Augustus Wolfinger, Deceased, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    July 9, 1907.
    Master and servant — injury by shaft — failure to promulgate rules.
    A master cannot be held liable for injuries to bis servant merely because he has failed to make and enforce a rule which might have prevented the injury. The question is whether from the nature of the business the master could have foreseen that the rule was necessary to protect the servant.
    Thus, when an overhead shaft operated by an electric motor is not so placed that the employees work in proximity thereto, a servant who remounted a ladder to finish repairs on the shaft after he had directed a fellow-servant to start the motor cannot base a recovery upon the . failure of the master to promulgate a rule prohibiting the starting of the motor except by direction of the foreman. The likelihood that the servant would continue to repair the shaft after having ordered the motor to be started could not have .been foreseen by the master. •
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of January, 1907, upon the verdict of a jury for $5,000, also from an order entered in said clerk’s office on the 2d day of January, 1907, denying the defendant’s motion for a new-trial-made upon the minutes, and also from an order entered on the 5th ..day of January, 1907, granting plaintiff an extra allowance.
    
      I. R. Oeland [George D. Yeomans with him on the brief], for the appellant.
    
      Frederick S. Martyn, for the respondent.
   Jenks, J.:

' This action is for the negligence of a master towards its servant. The court limited the question of liability to the ■ absence of rules. I think that the judgment for the plaintiff cannot stand.. The plaintiff’s intestate was a blacksmith of long service in the defend; &jyt’s repair shop. Power was furnished to -the emery wheel, grindstone, drill press and forge by a shaft placed near the .ceiling about fourteen feet above the floor and worked "by electricity. The intestate used this power more than his fellows. Repairs were being made to a crane used in the shop, and for this purpose a movable ladder had béen rested upon the shaft which was still. The intestate took part in the repairs and was upon this ladder at the close of the work day when the foreman ordered' the men to quit work. The workmen were accustomed to heat water to wash themselves by a piece of iron heat’ed in the forge. Smith, a fellow-servant, testifies that the intestate said to him that they had no hot water and that he replied that" they must have it." Smith then walked five feet over to the forge, put a piece of iron in it, went back to.the ladder and said,. “How is it on the ladder.?” and the intestate answered, “Go ahead and throw it on;” thereupon Smith walked about twenty-five feet to the switch and closed it: The other witnesses do not detail the conversation,, but they testify to the subject of it and cor-, robórate the doings of Smith. The intestaté had' begun to descend when Smith had gone over to the forge. . At this moment the foreman asked him to puf a. drift pin in the rail of the crane for the. night. The intestate went up the ladder and put his left hand on the top of the shaft and ivas reaching over to insert the drift pin, when the shaft started and drew liis hand and arm in; the ladder began to slide and the intestate finally fell to the floor. ' ' .

The rules suggested by the plaintiff are: (1) That none should close the switch without first notifying the foreman or' other men employed about the shaft, or (2) that none should close the switch, unless delegated by the foreman. It must be borne in mind that as the shaft was located none could, under the usual conditions of the work, come in contact with it: Save the blower, the furnishing of. power from the shaft depended upon the attachment of pulleys or belts. The workmen were not employed about the shaft in the sense that its' motion alone could be any source of danger to them. Under the circumstances the second rule might have prevented this casualty. When Smith left the intestate, after being told to “ go ahead and throw; it on,” he probably assumed from that remark and also from the. fact that the men had been told to quit work, that the intestate who had started down the ladder would leave it and it would be removed before he (Smith) could close the switch. Smith had no reason to foresee that the intestate .would'attempt any further work, and so went on his"' Way to close the switch. The intestate; either forgot for the instant that he had told 'Smith to go ahead, or he did not understand that Smith gathered from their, talk that he was to close the switch immediately, or in any event. there was some misunderstanding. . Of course, if the starting of the shaft involved a danger to the intestate in his attempt to obey the foreman which the foreman foresaw, a rule which required the foreman’s assent before Smith closed the switch if obeyed would have saved the intestate. But the question- is whether the failure to adopt such a rule is the omission of that reasonable Care which should from the nature.of the business have foreseen and anticipated, its necessity to protect the intestate. (Morgan v. Hudson River Ore & Iron Co., 133 N. Y. 666, 670.) The mere absence of a rule which, if made .and enforced, would have prevented a casualty, is not enough. For, m Martin, J., -says in Larow v. N. Y., L. E. & W. R. R. Co. (61 Hun, 11, cited with approval va. Morgan Case, supra): “ If the principle, involved in this case is to be upheld, it would seem to follow that.ih every case of. an .injury to an employee ingenious counsel would be able to invent some rule and- claim that it should have been adopted and promulgated by the company, and thus present a question as to" the defendant’s negligence. . The effect of such a rule,' when taken in connection with the uniform tendency of juries to find against railroad companies, would be practically to. make such companies .insurers of their employees.”

The judgment and orders are reversed and a new trial is granted,

Hirschberg, P. J., Woodward, Gaynor and Miller, JJ., concurred.

. J udgment and orders reversed and new trial granted, costs to abide the event. - .  