
    Aleck Aleckson, Appellant, v. Erie Railroad Company, Respondent.
    
      Negligence — injury to an employee engaged, in removing with the aid of a steam engine lumber from, a dock to a float — the withdrawal, hy the employer's, superintendent, of a foreman who was engaged in signaling to the engineer when to stop and when to start his engine —proximate cause — assumption of risk.
    
    In an action brought to recover damages for personal injuries, it appeared that the plaintiff was one of a gang of men employed by the defendant in the work of loading lumber from a dock upon a float; that the logs were drawn to the edge of the dock by means of a rope attached to the engine of a floating pile- • ■ driver moored near the dock; that the, physical conditions were such as to authorize the jury to find that it was necessary, in order to guard against the possibility of accident, to station a signalman on the dock for the purpose of notifying the engineer when to stop and start the engine; that on the day in question, the foreman of the plaintiff’s gang acted as signalman and that after the work had continued for about an hour, the defendant’s superintendent took away the foreman and ordered the remaining men to proceed with the work without designating or requesting any one to perform the duties of signalman; that soon thereafter, while the work was proceeding and when no one was acting as signalman, the engineer of the piledriver allowed a stick of lumber which he was engaged in hoisting to drop and strike the plaintiff on the leg, breaking it.
    
      Held, that a judgment dismissing the plaintiff’s complaint should be reversed;
    That there was sufficient evidence from which the jury could find that the proximate cause of the accident was the failure of the defendant to keep a signalman upon the work,, and that the defendant’s superintendent, who was his alter ego, in taking away the signalman and designating no one to .take his place, was guilty of negligence;
    That, in view of the short interval which elapsed between the withdrawal of the signalman and the happening of the accident, it could not be said that the plaintiff had assumed the risk of .the absence of a signalman;
    That the fact that it appeared that at other times, when the signalman went away some of the other men were appointed to gire signals, and that on one occasion the plaintiff himself had performed such duty, was not important except as it showed that the duty of signalman demanded no special skill or proficiency, not that his presence was not necessary to prevent accidents;
    Thdt the questions of the defendant’s negligence and of the plaintiff’s freedom from contributory negligence and of his assumption of the risk were questions of fact which should have been submitted to the jury.
    Ingraham, J., dissented.
    Appeal by the plaintiff, Aleck Aleckson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of March, 1904, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 29th day of March, 1904, denying the plaintiff’s motion for a new trial made upon the minutes.^
    The action was brought to recover for. personal injuries sustained while plaintiff was employed by the defendant in loading timbers, upon a float from a bulkhead, the plaintiff’s claim being that,.' through the defendant’s negligence in doing the work, one of the timbers dropped from the dock to the float, struck and pinned him to the dock and broke his leg.
    Plaintiff was one of eight men engaged in the work of loading lumber from one of " the railroad docks to a float in the river alongside the dock. In the water near the lumber float was a floating piledriver having engine and windlass and uprights over the tops of which ran a rope'carried to shore and used to pull the logs from inshore to the edge of the dock, where they would tumble down on the float. The work required eight men ; an engineer down on the floating piledriver to operate the engine on receiving signals; the foreman who stood upon the dock in full view of the engineer and all the other men, and who gave signals to the engineer when to drop the "logs,, and when to stop and when to start the engine ; two men on shore at the pile to receive the rojie or cable and attach it to the timbers; and four men on the float to arrange the timbers after they fell down upon the float. ’ To this last work the plaintiff and three other men were assigned.
    The physical conditions were such that there was a question as to the extent to which the engineer could see the pile of lumber or the men on shore, or the swinging logs, or the four men assigned to duty bn the float. The engine was in a house on the piledriver with a door in one end and the engineer could see while operating the engine the signalman (the foreman) who stood upon the corner of the dock where he could see every man on the work. The work continued without mishap with the eight men in the positions indicated for an hour on the morning in question. After the four men, including plaintiff, had arranged a log on the float and had returned to the dock to wait there for the next log to reach the float, the superintendent or head foreman came along and took off the foreman of’ the job who was giving signals, and ordered the men remaining to proceed with the work, without designating or requesting any one to take his place to give the signals. After the foreman had gone the men went on with the work, and it would appear that some one of them, in addition to fastening the chain to one of the sticks of timber, attached a line to the other end which the witnesses designate as a “snub” line, and tried if that would work. The plaintiff and the three other men who were working with him were then standing on the dock. As the stick or timber was drawn across the bulkhead instead of going straight on to the catamaran, for some unexplained reason it swung to the right towards the place where the plaintiff and the three other men were standing; the end of it was some six or seven feet above the heads of these men., The engineer then let the stick drop, and although plaintiff started to run up the dock he was not quick enough, for the timber coming down struck him on the leg, breaking it.
    At the close of the testimony the complaint was dismissed, and from the -judgment entered on -such dismissal the plaintiff appeals.
    
      Vincent P. Donihee, for the appellant.
    
      Frederic B. Jennings, for the respondent.
   O’Brien, J.:

Whether the swerving of the log was or was not due to the ■“snub” line on the other end of it does not clearly appear nor is it necessary for ns to determine. Apart from this we think the evidence would justify the inference that the negligence of the engineer in operating the engine so as to drop the log onto the plaintiff, was due to the absence of the signalman, for whose absence the defendant is chargeable. There being upon this a question of fact, taking the inferences most favorable to the plaintiff, which upon a nonsuit we must do, we think it was error to dismiss the complaint, because there was sufficient evidence from which the jury could ■conclude that the proximate cause of the accident was the failure of_ •the defendant to keep upon the work a signalman, without whose •presence an accident was probable, and as appears happened the moment he ivas withdrawn.

Without the signalman the engineer could not with safety determine when and where lie should drop the timbers, and those who like' the plaintiff were engaged in laboring work on the dock, had a right to assume that some one would be designated by the master to give the customary signals to the engineer.. They cannot be said to have assumed the risk of the absence of the signalman, for such risk did not exist until a moment before the accident, at which time the signalman had been withdrawn. If, with knowledge of this fact the plaintiff had continued to Work, then the doctrine of assumed dr obvious risk would apply; but.in view of the testimony showing ■ that but a brief interval of time elapsed between the removal of the signalman and the accident:, we do riot think that as matter, of law it can be said that the plaintiff assumed the risk, and thus barred his right to.recover;

We have not overlooked the testimony given that it happened at. times when the foreman went away that some of ■ the other men were appointed to. give the signals in his stead; nor the fact that upon another occasion and in another employment this plaintiff himself had performed that duty. Such testimony only tends to prove that the duty of the signalman demanded no special skill or proficiency but that any of the employees engaged in handling the timber could give the signals as well as' the foreman. The consideration of this evidence,, however, does not help us to solve the question presented, because, no matter how easy it might have been for any of those engaged' upon the work to have acted, as signalman, the fact here appears that no one was so designated' to act-after the foreman was called away. The testimony in this case is that no request or designation-of any one-was made to take the foreman’s place when he withdrew. It .must, wé thinly be conceded that an-important part of the work was the lowering of ’ the timbers to the deck of the" catamaran, and that a signalman was necessary to prevent accidents. . '.

Starting with the view that we entertain that the jury could find as matter of fact' upon the evidence that the proximate cause of the accident was the sudden lowering of the timber, due to the absence of the signalman, we do not see why the jury had n'ot the: right legally to infer that the act of the superintendent, who. was its alter ego, in taking away the foreman signalman and designating, no one to take his place was an- act of negligence. The jury could reasonably infer that the accident would not have happened had there been a signalman attending to his duties, and the fact that the signalman who was so engaged left his position does not excuse the defendant. In Flike v. B. & A. R. R. Co. (53 N. Y. 519) it was held that where an .agent of the defendant, whose duty it was ' to make up and dispatch trains, sent out a heavy freight train with but two brakemen when three were required, and in consequence a fireman was killed, the defendant was liable.

With respect to the duty imposed upon the master, we can thinly of no distinction in principle between the act of engaging in a hazardous work without sufficient men, or starting the work with a sufficient number and then removing one, whose absence made the work extra hazardous. It was necessary for the safety of this work that there should be a signalman; and this duty was not discharged by the master appointing one, and thereafter directing him to leave. We think, considering the dangerous character of the work and the important relation which the signalman bore to its safety, that the duty rested upon the master of seeing to it that some one was at all times supplied who could attend to this work.

The question, therefore, of the defendant’s negligence, we think, was one for the jury equally with that of the plaintiff’s contributory negligence or assumption of risk, which upon the evidence' should have been submitted to the jury as questions of fact, and not disposed of on the motion to dismiss the complaint as matters of law. It follows that the judgment and order should be reversed and a new trial ordered, with costs to the appellant to 'abide the event.

Van Brunt, P. J., McLaughlin and Hatch, JJ., concurred; Ingraham, J., dissented.

Ingraham, J.

(dissenting):

I do not concur in" the reversal of this judgment, as I do not think that the evidence shows that the injury was caused by the withdrawal of the signalman, or that the act of the engineer in lowering the timber was caused by his failure to receive a signal from the signalman.

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