
    Thomas Fallon, Respondent, v. Louis C. Mertz and Others, Composing the Firm of “ George Mertz’s Sons,” Appellants.
    Second Department,
    January 26, 1906.
    negligence — common law applies when foreign law not proved — injury toy fall of derrick placed hy plaintiff and fellow-servants — erroneous charge—proper practice in making requests to charge.
    When an alleged act of negligence happens in another State and the law of that State is not proved on a trial in this State, the common law of this State will be applied.
    When the plaintiff was injured by the fall of a small portable.derrick used in erecting a building and moved by plaintiff and his fellow-servants from place to place as the work required, it is error to charge that negligence of the defendant can be found if the derrick fell from not being set up in a safe position.
    • So, too, it is error to charge that the fall of such derrick raises a presumption of negligence of the defendant, as such fall may have occurred because the derrick was set up or used negligently by the plaintiff or his fellow-servants.
    In such action it is error to refuse to charge the following items when the same have not been covered by the main charge:
    1. That the men using the derrick with the plaintiff were his fellow-servants.
    2. That if the derrick fell from the negligence of his fellow-servants the plaintiff could ijot recover.
    3. That the master is not liable to a servant for the negligence of fellow-servants in the performance of acts pertaining to their duties and not to the duties of the master.
    4. That to hold the employer liable, the burden is on the servant to prove that the apparatus used was unsafe.
    6. That the master is not liable for negligence bf a fellow-servant in the performance of á detail of the work which is the work of the servant, although such servant is á foreman or of a higher grade than the servant injured. i
    
      6. That the placing of such derrick in a position to hoist is a-detail of the work for the negligent doing of which the defendants are not liable. ,
    The practice of holding such requests until after the charge condemned'.
    When an accident happens, as aforesaid the question of a safe place to work is not involved, and it is ■ error to-charge that. a. duty to furnish such place is On the master.
    Appeal by the defendants, Louis C. Hertz and others, composing the firm of “ George' Hertz’s Sons,” from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 12th day of April, 1904, upon the verdict of a jury foil $2,000, and also froth an order entered in said clerk’s office- on the 3d day of May, 1904, denying the defendants’ motion for a new trial made upon the minutes.
    . Henry G. Henderson \L)e Witt H. Lyon with him on the brief], for the appellants. ■
    
      Michael J. Tierney, for the respondent.
   Gaynor, J.:

This action was to recover damages for injuries done to the plaintiff by the fall of a small portable derrick which was being used by-, him and his felloW-workmen in hoisting and lowering blocks of stone into position on a building. All were in the employ, of the defendants. The accident happened in the State of .Connecticut, ■and as the law of that State was not proved the common law of this State applies.

The plaintiff claimed that the derrick fell because it did not have ■ a proper footblock with sockets for the two legs of the derrick to .set in so as to keep, them in position, and that in consequence they slipped from their position from the' weight of the' hoist, -causing .the derrick-to fall. This was the main subject of contention.

It was the duty of the defendants, the masters, to use reasonable care to furnish a safe derrick.. But the men had to set it Up and . shift it from place to place on the building as required in the progress of the work, and'they had set it up without any participation * of the defendants. That was a detail of the work they were employed to do; For the negligence of any of them to the plaintiff. in doing it'the master was not liable. These are rules too common among us to call for citation of authority.

It is therefore plain that the exception to the charge that negligence could he found against the defendants if the derrick fell from not being set up in a safe position presents a radical error, and the same is true of the exception to the charge of the overzealous request of plaintiffs counsel, made after the main charge, that the falling of the derrick alone raised a.presumption of negligence in the defendants. The maxim, “ The thing speaks for itself,” did not apply to the case, for the derrick might have fallen from being set up negligently, or from being used negligently by the plaintiff and his fellow-workmen,, as the defendants contended, and as the jury might well have found.

The learned trial judge also refused to charge at the request of counsel for the defendants (1) that the men using the derrick with the plaintiff were his fellow-servants; (2) that if the derrick fell from the negligence of his fellow-servants the plaintiff could not recover; (3) that the master is not liable to a servant for the negligence of fellow-servants in the performance of acts pertaining to their duties and not to the duties of the mastér; (4) that to hold the employer liable the burden was on the servant to prove that the apparatus was an unsafe one; (5) that the master is not liable for negligence of a fellow-servant in the performance of a detail of the work intrusted to him, which is a work of the servant, although such servant was a foreman or of a higher grade than the injured servant; (6) that the placing of the derrick in position to hoist was a detail of the work, for the negligent doing of which the defendants were not liable. The exception to each of these refusals is vital. The requests were all necessary, for their substance had not been covered by the main charge.

It would have been the-better and the proper practice if the list of requests- to charge had been handed up to the court during the summing up of counsel, at the latest, so that they -could have been carefully" read by the learned trial judge and each marked refused or granted, and handed back to counsel to read those granted to the jury before the beginning of the charge, or to hold them until after the charge, if the court so permitted, and then only request the. charge of any not substantially coveted by the charge.' The practice of holding such requests'Until after the charge, and-then reading them and having them passed upon, usually distracts and perplexes the jury, and destroys the effect upon them of the main charge. It should not be indulged in.

The charge of the duty of a master to furnish a servant with a safe place to work was also erroneous. Tt was misleading to the jury. It was inapplicable to the case.. Ho place'to work was or could be ,furnished by the defendants.. The men were erecting a building, and their places to work on the walls and elsewhere Were changing by their own work all the time. The plaintiff was guiding the suspended stone to its place on a chimney when the accident happened, and the derrick stood near by on the roof. There was no question of a safe place to work in the case.

The judgment and order are reversed.

Jenks, Hookee, Rich and Miller, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  