
    Tinaro Lopisi, Appellant, v. The Degnon Construction Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    April, 1912.)
    Master and servant — negligence — master’s liability for injuries to servant — willful or malicious acts of persons representing master — actions — defects in tools, appliances or places to work — fellow servants — vice-principals and persons engaged in superintendence.
    Where, in an action under the provisions of the Labor Law relating to an employer’s liability, it appears that while plaintiff was fastening a chain around a large rock near the steep bank of an excavation a rock tumbled and injured his hand, evidence that on the morning of the day of the accident defendant’s foreman had been warned by several of the' workmen that the bank was in dangerous condition and that stones were falling is material on the question of the foreman’s negligence.
    Whether the defendant was chargeable with the alleged negligence of the foreman depended on whether he was at the time exercising superintendence and whether his -alleged negligence occurred in respect of an act of superintendence.
    Appeal by plaintiff from a judgment of the City Court of the city of Rew York, dismissing the plaintiffs complaint at the close of his case.
    Stephen Callaghan, for appellant.
    Amos H. Stephens (William B. Davis and Earle W. Webb, of counsel), for respondent. .
   Bijur, "J.

This action was brought under the Employers’ Liability Law, for personal injuries to' plaintiff resulting from the alleged negligence of defendant.

Defendant was excavating the extensive tract west of Sixth avenue between Thirty-second and Thirty-third streets in this city. Plaintiff had been in defendant’s employ for a considerable time as helper to “ timber men,’1 placing braces to hold back exposed walls of earth. He 'was directed by a foreman on October 12, 1909, the day of the accident, to assist a gang of men who were removing rocks. While employed in fastening a chain around a large rock near a steeply sloping bank in a part of- the excavation, a rock higher up tumbled down and injured the plaintiff’s hand.

Plaintiff has, on this appeal, disclaimed any desire to charge the master with negligence based on the theory of failure to provide a “ safe place ” to work.

The first question, then, to be determined is: Did the plaintiff make out a frima facie case of negligence on the part of the foreman? To this I think that, after giving plaintiff the benefit of every intendment and inference to which he is entitled on a motion to dismiss — we must return an affirmative answer. Moreover, evidence that defendant’s foreman had been warned .by several of the workmen, that very morning, that this bank was in dangerous condition and that stones were falling from it, was erroneously excluded.by the learned trial judge. This knowledge, on the part of the foreman, of facts which rendered dangerous the manner in which he directed the work to be done, was máterial on the issue of the foreman’s negligence.

The next inquiry is whether the negligence of the foreman is chargeable to the defendant, bearing in mind that this action was brought under the Employers’ Liability Act. That again depends, in the first place, on whether the foreman at the time was, as provided in the act, exercising superintendence and whether his alleged negligence occurred in respect of an act of superintendence. See Guilmartin v. Solvay Process Co., 189 N. Y. 490. This presented-an issue upon which there was at least sufficient evidence to go,to the jury. ■

There remains then, the question: Assuming ’that the jury might have found the foreman negligent while exercising superintendence, and in respect of an act of superintendence, would the master have been liable for the foreman’s' act? The defendant apparently claims that the master is not liable because the act of alleged negligence occurred in the course of the performance of “ details of the work.”

Before the statute, the master was not liable for the negligence of a fellow-servant in the detailed prosecution of the work, and “ the foreman and workmen are fellow-servants.” Vogel v. American Bridge Co., 180 N. Y. 373, 380. The employer was “ responsible only for his own negligence or that of his alter ego — not for the negligence of a co-servant.” Neagle v. Syracuse, B. & N. Y. R. Co., 185 N. Y. 270, 274.

What change has the Employers’ Liability Act wrought in these relations ? We may omit bonsideration of the more liberal rule as to assumption of risk laid down in section 3 of the act (Laws 1902, chap. 600 — Labor Law, § 202), as that either has no application to the case at bar, or would, if the facts in any aspect might be held to render the question pertinent, require by the very terms of the act submission of that question to the jury. This inquiry addresses itself primarily to section 1 of the act, being section 202 of the Labor Law, as it existed at the time of this accident in 1909, prior to the amendment by Laws of 1910, chapter 352.

The first subdivision of this section relates to an injury caused by an employee “ by reason of a defect in the condition of the ways, works, or machinery connected with, or used .in, the business of the employer * * As to this section, the Court of Appeals, in a case decided shortly after the passage of the original act, namely; Gmaehle v. Rosenberg, 178 N. Y. 147, 151, remarked “we are not prepared to say whether the statute has in any respect increased the liability of the master for defective ways, works or machinery.” See also Nappa v. Erie R. R. Co., 195 N. Y. 176, 181. We may, therefore, disregard subdivision 1 of section 200 as having no bearing on the ease at bar.

On the other hand, when we come to subdivision 2 of section 202, we observe that it makes the employer liable “ by reason of the negligence of any person in the service of the employer intrusted with and exercising superintendence, whose sole or principal duty is that of superintendence.” As was said by the Court of Appeals in the Gmaehle case, supra, “ It is clear that it has given an additional cause of action where it prescribes that the master shall be liable for the negligence of the superintendent or any person acting as such.” See also McHugh v. Manhattan R. Co., 179 N. Y. 378, 383. It is true that in the subsequent case of Payne v. N. Y., S. & W. R. R. Co., 201 N. Y. 436, 443, the court says that this" expression as to an additional cause of action “ has been too broadly construed ; ” but that warning applies only to the interpretation of the Gmaehle case as holding that the statute gives a new cause of action, technically speaking. It remains, however, established with perfect clearness that the effect of the act was to add to the master’s responsibility to his servant by making him liable for the negligence of another servant — a foreman for example •— actually engaged in superintendence ; whereas, previous to the act a servant so situated would have been regarded as matter of law as a fellow-servant and the master thus exempted from responsibility for his negligence. It is to be noted that the master’s exemption from liability for the negligence of such a fellow-servant ” in carrying out the “ details of the work,” as held in the Vogel case, supra, and Perry v. Rogers, 157 N. Y. 251 (almost on all fours with the case at bar), was determined apart from the Employers’ Liability Act. The Vogel case was not brought under the act, and the Perry ca.se was decided in 1898, four years before the act was passed. In the Heagle case, supra, the court says expressly, “ This rule has been somewhat modified by the Employers’ Liability Act, but that statute was enacted subsequent to the accident before us.” The present state of the law is clearly expressed in the Guilmartin case, supra, 494, approving the language of Judge Gray in Harris v. Baltimore M. & E. Works, 188 N. Y. 141: “ That statute gave an additional cause of action; because it prescribed that the master shall be liable for the negligence of the superintendent or the person acting as such. At common law such a liability was not recognized; unless the superintending servant was the alter ego of the master with respect to the work.” It is apparent, therefore, that the act has so changed the common law that, instead of the master’s exemption from liability for the negligence of a foreman engaged in the details of the prosecution of the work, he has been made liable for the negligence of such a servant exercising superintendence and in respect of an act of superintendence.

For the reasons above stated, I think that the ease at bar presented issues, as herein above set forth, which should have been submitted to the determination of the jury on the evidence adduced.

Seabuby and Guy, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.  