
    O’SULLIVAN v. FLYNN.
    (Supreme Court, Appellate Division, First Department.
    January 10, 1902.)
    3. Master and Servant—Action for Death of Servant—Negligence— Finding of Jury—Sufficiency of Evidence—Assumption of Risk.
    Plaintiff’s intestate, a watchman in the employ of defendant, who was ■constructing a sewer, was directed by him to assist two of defendant’s «engineers to uncouple a pipe. The pipe had been bent to avoid a rock, and covered with earth to hold it in place. The intestate was holding the pipe, and when it was uncoupled it sprang back and knocked Intestate into an excavation, killing him. The evidence showed that the pipe was improperly laid, in being bent; that the engineers were skilled workmen, and intestate had some experience himself; that it was an unusual thing for a pipe that had been bent to spring after laying in •the ground as long as this one had; and that the men were not working" under the direction of defendant or his foreman. HeM, that the intestate ¡had assumed the risks incident to uncoupling the pipe.
    3. Same—Negligence of Fellow Servant.
    If there was any negligence at all, it was that of intestate and his fellow servants.
    Patterson and Hatch, JJ., dissenting.
    
      Appeal from trial term, New York county.
    Action by Annie E. O’Sullivan, administratrix, against JosepBi A. Flynn and another, a copartnership. One of the defendants having died, the action was continued against the surviving partner.. From a judgment in favor of plaintiff, and an order denying a new trial, defendant appeals.
    Reversed.
    Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.
    Alvin C. Cass, for appellant.
    Denis O’Sullivan, for respondent.
   INGRAHAM, J.

The plaintiff, as administratrix of Denis O’Sullivan, sues to recover the damages sustained by his death. The deceased was in the employ of a copartnership who were contractors, and at the time of the accident were engaged in constructing & sewer in the city of New York. Subsequently one of the copartners died, and the action is continued against the defendant as surviving partner. The defendant used a boiler in the performance ofi the work under the contract, and connected that boiler with a hydrant to supply it with water. That connection was made by a pipe which had been put in place by the- defendant some two or three months before the accident. In placing this pipe in position, it seem© that there was a rock in the way, and the men had difficulty in making the connection. O’Sullivan, the deceased member of the firm^ told his foreman to bend the pipe around the rock, whereupon one of the men took a bar and drove it in the ground, and bent the pipe around so as to connect it with the boiler. After this connection was made, the pipe was covered with earth, and remained in that condition until it was disconnected at the time of the accident. The man who laid this pipe testified that the usual way of laving pipe, where it cannot be laid straight, and an angle or bend is necessary, is to put either an elbow or swinging joint in, and. neither o£ these was placed in this pipe. This pipe was about 250 to 300 feet long, was connected with a hydrant at one end, and with barrel© at the other, and the boiler was fed from these barrels. The deceased had been a night watchman upon this work for about three-months prior to the accident, and he was at this work from the time this pipe was connected down to the time of his death. He went to work after 6 o’clock at night, and left at 7 o’clock in the morning, when the workmen came to relieve him. The plaintiff’s testimony tended to show that about 6 o’clock on the 7th of September, 1896, after the men had quit work, one of the defendants came and directed two engineers named Eawlor and Walsh and the deceased to disconnect this pipe. In pursuance of this direction,, the deceased, with the two engineers, commenced to disconnect the pipe. The deceased was on the side near the trench, lifting up the pipe; Lawlor straddled the pipe near the joint to be disconnected5 and Walsh stood on the other side, away from the trench, with st wrench. The sewer was there about 18 feet deep, and the pipe was about 6 to 8 feet from the sewer. Lawlor held the pipe in his handl. Walsh was unscrewing it with the wrench, and O’Sullivan was standing back of Lawlor, raising the pipe to allow Walsh to unscrew the coupling. When the coupling was unscrewed, the pipe sprung out, knocked Lawlor down, and knocked the deceased into the trench, 'Upon proof of these facts., the court submitted the question of the defendants’ negligence to the jury, who found in favor of the plaintiff.

The court charged the jury:

■“It you find that he [deceased] was injured in consequence o£ some imperfection in the method of using this pipe, then you will say whether the imperfection that you find existed was due to any negligence on the part of the defendant.”

The question that was therefore submitted to the jury was whether "the defendant was negligent in the method'of using this pipe, the rebound of which, when disconnected, caused the injury. At the close of the plaintiff’s case, and again at the close of the whole case, the defendant moved to dismiss the complaint, which motion was denied, and to which the defendant excepted; and the first question that is presented is whether, from this evidence, there was any theory that Justified finding the defendant guilty of negligence in the performance ■■of any duty which he owed to the deceased, which caused the injury. As before stated, there was evidence introduced on behalf of the plaintiff that the method adopted by the defendant was not the proper ¡method of laying this pipe; that where such a bend was required an ■elbow or joint should be used. But certainly the defendant had the ¡right to adopt such a method in laying the pipe used in relation to the ■-work as he thought best, and, so far as appears, the pipe worked well -so long as it was in use, and accomplished the purpose that was intended ; and, although these workmen have testified that they would have laid the pipe in another way, there is nothing to justify a finding that the method of laying this pipe by swinging it around the stone, instead of putting in an elbow or joint, endangered the men on the ■work, or caused them an injury. When these employés of the defendant were called upon to uncouple this pipe, they received their ■ orders from the defendant’s foreman. So far as appears, his instructions were simply to uncouple this pipe; and he does not appear to "have been present, directing the men to do the work, at the time of the accident. Walsh, an engineer, who was engaged in uncoupling this pipe, testified that he was entirely familiar with pipes of this kind; that he has had to do with water pipes for 28 years, and was .thoroughly familiar with coupling and uncoupling pipes; that this -pipe had been coupled and was being uncoupled in the usual manner; the only way that it could be coupled that he had ever known; that "he had known O’Sullivan, the deceased, about 4 or .5 years, and had .seen him before that time at work coupling and uncoupling pipes; that the witness had never known of a pipe, that has laid on the ground or in the ground for a month or more, on being uncoupled to straighten out,—to spring or rebound; that they commenced to uncouple the pipe at the hydrant, and had uncoupled it for most of ihe distance, except two or three lengths, before the accident happened. As before stated, neither the defendant nor the superintendent or foreman gave any direction to these men as to how they were to uncouple this pipe. They were simply directed to uncouple it and take it up, and they proceeded to do that work in their own way. The men had all been on the work, and, so far as appears, were familiar with the work of coupling and uncoupling pipes. Neither of the men, it would seem, anticipated that when the pipe was uncoupled it would spring as it did; and these employes, when they undertook to uncouple this pipe, assumed the risks incident to doing that work, and certainly the master was not responsible for the methods adopted by them. These methods they selected themselves. Two, at least, of the three men who were engaged in uncoupling this pipe were engineers and skilled workmen, familiar with the work; and certainly it was not negligence for the master to leave it to them to select the methods of doing the work that he instructed them to do. If there was negligence, it was the negligence of the men doing the work, in not uncoupling this pipe in the trench, instead of lifting it out of the trench and holding it above the ground, or in not taking some other precaution to prevent the spring from injuring them; but this was a mere detail of the work, which the master quite properly left to the skilled servants that he had employed to do the work. It was the negligence either of the deceased, or of those engaged with him in the performance of the work, in which latter case it would be the neglect of a fellow servant, for which the master was not responsible. It is quite apparent that it was not the negligence of the master in laying the pipe that caused the injury. The pipe was laid to supply the boiler with water, and it performed its work, and no accident happened until the men undertook to uncouple it when it was no longer needed; but it was this particular pipe, laid in this particular way, that the men were directed to uncouple. There is nothing to show that they did not understand the situation and the danger of doing this work as well as the master, or that the master could have anticipated that they would so uncouple the pipe that they would be injured by its rebound. It is quite apparent that precaution could have been taken which would have prevented the spring of the pipe from injuring any one, and it was because of a failure to take these precautions that the injury happened. Walsh expressly testified that when he started working to disconnect the pipe he knew what kind of a bend was in it, as he had seen it before. We think it clear from the whole case that no negligence could be predicated upon the way that the pipe was originally laid; that, when these workmen were directed to uncouple the pipe, they were required to adopt the proper methods to perform the work; that it was their duty to disconnect it in a proper way, and to take the proper precautions to avoid injury; that if the injury to the deceased was caused by a negligent way of uncoupling the pipe, whether that negligence was of the deceased or those engaged with him, it was a risk incident to the employment, or the negligence of a fellow servant, for which the defendant was not liable. On the whole case, there was no evidence to justify a finding of negligence against the defendant, and the complaint should have been dismissed.

It follows that the judgment and order appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur, except PATTERSON and HATCH, JJ., who dissent.  