
    Margaret Bateman, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence — injury from falling through a trap door, not fitted with hinges, improperly replaced by fellow-servants of the plaintiff—who are fellow-servants.
    
    Where a hole in the floor of a freight office of a railroad company is fitted with á ' trap door made of the same material as the floor and so constructed that when placed in position it rests upon joists even with the surface of the floor and fits so closely that it is necessary to pry it up in order to remove it, the fact that the door is not fastened to the floor by hinges does not render the railroad company liable to a woman employed to clean the freight office, who steps upon the trap door and is precipitated to the ground, sustaining personal injuries, in consequence of the fact that some plumbers in the employ of the railroad company, who had done some work under the office floor, had neglected to properly replace the trap door..
    
      Semble, that in such a case the plumbers and the injured woman are fellow-servants.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the eounty of Onondaga on the 3d day of July, 1901, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 8th day of July, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    On the 17th day of November, 1898, the plaintiff, who is a married woman and about forty-one years of age, Was engaged, in cdmparty with another woman, in cleaning the freight office of the-defendant in the city of Syracuse. While thus occupied she stepped upon a trap door in the floor of the office and was precipitated to the ground below, a distance of some three or four feet, thereby sustaining bodily injuries, to recover which she- brings this action.
    It seems that this hole in the floor was about twenty-five and one-half inches in length and twenty-two and one-lialf inches in width, and that the cover thereto, which was constructed of the same-, material as the floor itself, was composed of nine pieces of board.
    • one and one-eighth inches in thickness, which were nailed or screwed, to a batten on the under side, nine inches wide, so that when in place the cover rested upon joists and was even with the surface of the floor. There were no hinges upon the cover, but when placed in position it fitted so closely that in order to be removed it had to be pried up.
    Upon the day in question some plumbers who were in the defend-ant’s émploy had occasion to do some work under the office floor, in order to accomplish which they removed the cover-to the trap, and. instead of replacing the same in the position in which they found it,, they left it raised a little on one side, so that when the plaintiff stepped upon it it tipped up and let a portion of her person down, through the-hole, with the result already mentioned.
    
      Frank Hiscock, for the appellant.
    
      T. E. Hancock and John W. Hogan, for the respondent.
   Adams, P. J.:

The plaintiff testified, and in this she was uncontradicted, that she-, had never seen this trap door and did not know of its existence until the accident occurred, so that there was little, if any, evidence tending to establish contributory negligence upon her part, and the jury were instructed that if it could be said that the accident was. attributable solely to the carelessness of the plumbers in omitting toi properly adjust the cover to the opening, the plaintiff must fail in her action, inasmuch as the negligent parties in that event occupied, the relation of co-employees to the plaintiff.

This instruction, we think, was manifestly .a correct statement of the law of the case ; for it seems that the mechanics who it is claimed -left the cover in an unsafe condition, although called- plumbers,”’ were in the regular service of the defendant, and not, as might naturally be inferred, the servants of another master called in to-perform work of an independent nature.

The jury were further instructed that they might determine-whether or not the place in which the plaintiff was required to perform the’ service rendered by. her ivas, under all the circumstances-of the case, a reasonably safe one, and that if they found it was not,, they were at liberty to return a verdict for the plaintiff even though her injuries were the result of the combined negligence of the defendant and its plumber employees.

This, it is hardly necessary to suggest, is also a correct statement of the law, provided the case furnishes any evidence which will fairly support a verdict based upon the assumption that the defendant failed to perform the duty which the law requires of every master, which is, not to furnish his servants with the best and safest place and appliances in and with which to perform the services required of them, but simply to exercise a proper degree of care in order that they may be reasonably safeguarded in these respects, (Dumes v. Sizer, 3 App. Div. 11.)

In this particular case the only omission of duty charged against the-defendant was the failure to secure' the trap cover to the floor by means of hinges, and it was left to- the jury to say whether such omission constituted negligence within the rule of law applicable-to cases of this description.

In stating this rule, the Court of Appeals has said, in a very recent case, that “ it has not been understood to be the rule in this state-that in the performance of work of this character the master, after making the place in the first instance reasonably safe for the prosecution of the work, has any duty to perform other than in the furnishing of safe appliances and the employment of competent and skillful employees. Under the guise of an application of the rule-requiring a master to furnish a reasonably safe place for his servants to work in, other attempts before this have been made to deprive a defendant of the benefit of another equally well-settled and just rule of the law of negligence, that a party shall not be held responsible to a servant for an injury occasioned by the neglect of a competent co-employee.” (Perry v. Rogers, 157 N. Y. 251, 255.)

And this is not the declaration of any new principle, but simply the statement of one which has been frequently enunciated by the same tribunal under differing conditions of fact. (Hussey v. Coger, 112 N. Y. 614; Filbert v. D. & H. C. Co., 121 id. 207; Hogan v. Smith, 125 id. 774; Geoghegan v. Atlas Steamship Co., 146 id. 369.)

Tested by the rule as thus declared, we fail to see how it can be said that the place in which the plaintiff was required to perform her work was unsafe in any sense for which the defendant was responsible.

The cover for the trap was beyond all question so constructed as to withstand the greatest weight which, under any conceivable cir cuinstances, would ever rest upon it, and when adjusted in the manner designed by the defendant, it was not only flush with the floor, but it was a part of the floor and just as firm and safe as any other part. Indeed, it appears that, in such circumstances, it was so firmly and closely fitted to the aperture for which it was constructed that it required some effort to remove it, and this being so, the conclusion is irresistible that but for the failure, of the plumbers to replace the cover in the exact condition in which they found it, the plaintiff, would have escaped the injury which subsequently resulted.

It is possible' that, if the cover had been adjusted by means of hinges, this particular accident would not have occurred ; but even assuming this to be so, it does not" follow. that the defendant’s liability is established, for the fact still remains that, with the means of adjustment which it had furnished, and which, so far as appears, had always ■ theretofore proved sufficient, the place was' both safe and suitable, within the rule cited, and, if so, the verdict of the jury has nothing upon which to rest. (Marsh v. Chickering, 101 N. Y. 396; D'Arcy v. L. I. R. R. Co., 34 App. Div. 275.)

These views necessarily lead to a reversal of the judgment and order appealed from.

All concurred.

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