
    Agnes Butler, Resp’t, v. James A. Townsend et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed March 20, 1891.)
    
    1. Master and servant—Negligence.
    Plaintiffs intestate, while at work for defendants in caulking a ship, standing upon a staging, was precipitated therefrom by the breaking of a defective plank and killed. The staging was erected by "another class of caulkers known as “lumpers,” hired by defendants under a separate contract with the foreman, one Kennovan. Held, that the “lumpers” were not servants of defendants, but independent contractors, entirely under the control of Kennovan, and that defendants were not liable.'
    3. Same.
    The trial court held that the lumpers were servants of defendants from the fact that the latter directed their own foreman “to look after the safety of the scaffold,” Held, that even on that theory defendants were not liable, as the duty violated related not to the place of work, but to an appliance or instrumentality used, and the negligence of the lumpers existing and continuing when the decedent was employed was that of his fellow , servants, even though in some sense it had an earlier origin.
    (Huger, Oh. J., Andrews and O’Brien, JJ., dissent.)
    Appeal from judgment of the supreme court, general term, second department, affirming judgment for plaintiff.
    
      Eseh Cowen, for app’lts ; Charles M. Stafford, for resp’t
    
      
       Reversing 33 N. Y. State Rep., 1055.
    
   Finch, J.

The evidence in this case shows that the process of repairing the exterior hull of a vessel placed in a drydock for that purpose requires the skill and labor of at least two classes of workmen, known in the business as “ lumpers ” and “ caulkers.” The duty of the former is said to be to erect the staging around the vessel, grave the vessel, and put on the felting, if necessary, and run the metal; and when this work is done, that of the caulkers follows. The lumpers consist of eight or more men known as the “ lump gang,” one of whom acts as their foreman. There were two of these “gangs” in Brooklyn, and one or the other of them was always employed in doing that kind of work. The foreman or “boss ” of the lump gang at the scene of the accident was Kennovan. He testifies that he made a contract with the defendants to do the lumper’s work upon the vessel, which included the erection of the staging, for four cents a sheet of the metal run on. He said “ it is the understanding with us men that we made a contract with the defendants to do this lumping work you have spoken of. After we had performed that work we entered upon the duties of a caulker.” He added that for those duties he was paid caulkers’ wages by the day. His contract as a “ lumper ” he further described thus: “ My contract with Townsend and Edgett was to erect the scaffold and to grave the vessel, put on the felt and run the metal. That included the whole thing, and I received for that four cents for every sheet that went on the ship. That was for the whole gang, as I contracted for the whole gang. That is my usual custom. In this particular case I agreed to put up a good scaffold.”

Under this agreement, which is in no respect disputed, it is clear that Kennovan and his associates, while performing their contract, were independent of the control of the defendants and not subject to their orders. Kennovan could Mre or discharge his men, dictate who should work on the job and who should not, and assign to each his place and specific duties. 'The defendants could do neither. Their rights were under the contract which they had made, and that committed the whole lumper’s work to Kennovan and his associates, who, while performing their contract, could employ or discharge whom they pleased, and subject to no orders or directions of the defendants.

These lumpers erected the staging. A single plank was defective and broke with the weight of the men upon it, one of whom, not belonging to the lump gang, was fatally injured and for his death this action has been brought.

I think, upon the evidence given, that the lumpers who erected the staging, while employed by the defendants, were not in a legal sense their servants. One may be employed without being a servant, and have an employer who is, nevertheless, not the master. King v. N. Y. Central R. R. Co., 66 N. Y., 181. The relation exists where the employer selects the workman, may remove or discharge him for misconduct, and may order not only what work shall be done, but the mode and manner of performance. Blake v. Ferris, 5 N. Y., 48; Town of Pierrepont v. Loveless, 72 id., 214, 215; Wood on Master and Servant, § 314. That test applied to the relation between Kennovan and the defendants shows that the lumpers were independent contractors and not servants. There were two such gangs, each under a foreman, or “boss,” who contracted for and controlled their skilled labor. The foreman admitted or excluded men, diminished or increased their number, and assigned them their places and tasks. The defendants could make requests or give advice, but could issue no effective orders as to the mode and manner of doing .the work. They owed the separate workmen no separate wages, and no wages as such. Their liability was to Kennovan for a contract price. How much of that was payable to each member of the gang the defendants could not know or in any manner determine. The ground upon which the trial court held that the lumpers were servants of the defendants appears to have been that the defendants directed their own foreman to “look after the safety of the scaffold.” By the contract Kennovan was to build a good one. That the defendants kept a watch and an oversight over the contractors to see that they properly fulfilled their contract, does not affect, still less change, the actual relation of the parties. Slater v. Mersereau, 64 N. Y., 138.

The case, therefore, is governed by the doctrine of Devlin v. Smith, 89 N. Y., 470, where it was held that one who put his own servants upon a scaffold for the construction of which he had contracted with a skilful and experienced builder, was not liable for an injury resulting from negligence in its construction; that he was at liberty to accept it without inspection, and was not in fault for putting his own workmen upon it. Here the staging was erected by skilled and experienced workmen who always did that work in the dockyard, who contracted to put up a good scaffold, and who were to test it by first using it and exposing their own lives upon it. It was not negligence for the defendants to accept it as perfect and expect their own servants to use it.

It is true that the plank for the staging under the customary rule were to be and were furnished by the defendants, but the evidence shows that an abundant supply of sound and suitable material was so furnished, and that the particular plank which broke had been examined and condemned and marked as unsafe, and that the sole negligence which occasioned the injury was a careless selection of that plank by the lumpers, for which the defendants were not responsible.

No liability, therefore, was established against them.

But even on the theory adopted by the trial court, that the lumpers were servants of the defendants and not independent contractors, the case was sent to the jury on a wrong principle. The theory adopted was that the defendants owed to the caulkers the duty of providing for them a reasonably safe place in which to do their work ; that whoever was chosen by the master to perform that duty became his agent, with whose negligence he was chargeable ; that the lumpers were such agents, and that they having been negligent in putting an unsound plank into the staging, the case stood as if the master had done it himself personally, and so became responsible for the consequent injury. It was a mistake to assume, as the duty violated, that of providing a safe place for the work of the servants. The staging was not, in the sense of the rule, the place in which the work was to be done, but an appliance or instrumentality by means of, or through the .aid of which the caulkers were to do their work.

The distinction is sometimes very important; for a place, in its broad sense, is never safe in which an accident happens, and an accident always happens in some place, and so the master might almost become an insurer. Properly enough an existing mine, or a railroad track crossing a cattle-guard, or the rooms in a factory have been deemed “ places ” for work which the master was bound to make safe by the exercise of reasonable care; but a platform upon which the servant was directed to stand, we have treated, not as' a place, but as an instrument or appliance of his work, Benzing v. Steinway, 101 N. Y., 547, and so of an elevator upon which the servant rode in the performance of his labor. Stringham v. Hilton, 111 N. Y., 188; 19 N. Y. State Rep., 621. In one sense the place of an engineer’s work is on his locomotive, but a defect in that is a defect in the machine which the master has supplied and not in the place of labor which he has furnished. The staging in the present case was as much an appliance or instrumentality as if it had been a ladder on some round of which the workman was required to stand in order to do his work, and we shall, at least, avoid possible confusion if we confine our attention to the exact duty which the master violated, if he violated any.

Assuming then that the lumpers were servants of the defendants, acting under the direction and orders of their foreman, they were also the fellow servants of the caulkers. Both were working at the same time under a common master, upon the same vessel and engaged in the same general employment. That to some extent their trades were different and one might not be skilled in the work of the other is immaterial where all were working upon the hull of the vessel, for one general purpose, to accomplish one common result and under one common control. Svenson v. Atlantic St. Co., 57 N. Y., 108. Their labor was more closely and clearly related to the general purpose than that of a car repairer, a head brakeman, and a yard master, who were held in a given instance to have been fellow servants. Besel v. N. Y. Central, 70 N. Y., 171. Now the evidence in this case demonstrates that as between the master and his servants it was the duty of the servants and not of the master to erect the staging. That was the uniform rule and unbroken custom which everybody understood and upon which everybody acted. It was a detail of the servant’s work, and a duty of the operatives which they and not the master were bound to perform. The duty of the latter was to furnish the horses and the plank, and of the former to construct the staging for their own convenience and use. It was as much a part of their work as to put on the sheets of metal which the master supplied. Indeed, the learned trial judge admitted all this when he charged the jury that the defendants were not bound to personally inspect and select the planks which were used. Of course the master was not liable to the servant for an injury due to the neglect of fellow servants. But the trial court held that the decedent and the lumpers were not fellow servants, and apparently upon the theory that the special and peculiar work of the lumpers was done before the work of the decedent commenced, and so the parties were not fellow servants when the negligent act of selection occurred. That is not a"t all established by the evidence, but is immaterial even if it be true, for the accident happened while the parties were fellow servants, and through the negligence of one who was a fellow servant, and not through any negligence of the master. It was the presence and the negligent use of the defective plank in the staging from which the injury came, and that was chargeable to the servants, who not only put it there, but left it there for the common use of all. A detail of the servants’ work cannot be transformed into a master’s duty by reference to the dates of employment. The new servant takes the risk of any existing negligence of his fellow servants as well as that which may thereafter occur. It may possibly be that if the lumpers had been discharged and ceased to be servants at all, and the defendants hiring others had furnished the erected and completed staging for their use, a different question would have arisen, perhaps involving some new duty of the master. But nothing of that kind occurred. Caulkers and lumpers, at the time of the accident, were working together upon the same vessel, for the same general purpose and under the common master when the negligence became operative which caused the injury. Tracing it back to an earlier origin is of no consequence unless thereby some new duty.of the master has been brought into existence.

The trial court, therefore, erred in the theory upon which the case was sent to the jury, even if the lumpers were not independent contractors. The duty violated, if any, related not to the place of work, but to an appliance or instrumentality used; the lumpers and caulkers were fellow-servants, and the negligence of the former, existing and continuing when the decedent was employed, was that of his fellow-servants, even though in some sense it had an earlier origin. The exceptions taken cover the errors .suggested and bring out clearly the fact that no question of personal negligence on the part of the master was submitted to the jury, but only one of imputed negligence, for which he was declared responsible.

The judgment should be reversed and a new trial granted, costs to abide the event

Earl, Peokham and Gray, JJ., concur; Rtjg-er, Oh. J., Andrews and O’Brien, JJ., dissent.  