
    Robert J. O’Connor, Plaintiff, v. James Stewart & Company, Inc., Defendant.
    (Supreme Court, Saratoga Trial Term,
    February, 1916.)
    Labor Law, § 200(2)—negligence — master and servant — pleading.
    Under section 200 (2) of the Labor Law, amended by chapter 352 of the Laws of 1910, so as to read as follows: “ When personal injury is caused to an employee who is himself in the exercise of due care and diligence at the time * * * 2. By reason of the negligence of any person in the service of- the employer intrusted with any superintendence or by reason of the negligence of any person intrusted with authority to direct, control or command any employee in the performance of the duty of such employee. The employee shall have,” etc., the fellow servant defense is not available where the injuries were caused by the negligence of one intrusted with superintendence or with authority to direct, control or command an employee in his work, even though that negligence occurred in a detail of the work.
    
      Motion for a non-suit- and dismissal of complaint.
    Leary & Fullerton, for plaintiff.
    R. A. Mansfield Hobbs, for defendant.
   Van Kirk, J.

At a former trial of this case the jury disagreed. At the present trial the defendant moved for a non-suit and a dismissal of the complaint. The court reserved decision of the motion and submitted to the jury written questions under section 1187 of the Code. The jury has again disagreed and the defendant asks for a decision of its motion. I have not a copy of the questions submitted to the jury, but they were in substance the following:

• (1). Was Cunningham an employee of the defendant intrusted with authority to direct, control or command the plaintiff in the performance of his duty?

(2) . Was the act of Cunningham, which caused the scales to fly into the eyes of O’Connor, a negligent act?

(3) . Were the ulcers, which later formed on O’Con-nor’s eyes, caused by the scales or foreign substance so thrown in his eyes?

(4) . Did any negligent act of the plaintiff contribute to bring about such injuries as he received?

(5) . If you answer the above questions favorably to the plaintiff, assess the damages.

There was some evidence in the case on which the jury could have answered each of the above questions in favor of the plaintiff.

The question presented upon the motion is under section 200, subdivision 2, of the Labor Law, as amended by the Laws of 1910, chapter 352. On this question the facts are to be considered found for plaintiff.

Cunningham was “A person in the service of the employer intrusted with authority to direct, control and command any employee [the plaintiff O’Connor] in the performance of the duty of such employee.” He was a foreman; he directed O’Connor to assist him in replacing in a boiler a grate made up of several sections. Cunningham went into the boiler; O’Con-nor handed in to him his lantern and a hammer; also the sections of the grate, one after another. The space remaining for the last section was not wide enough; this section was placed with one edge raised and the other edge against one of the adjoining sections in place. The side of the other adjoining section was raised and placed against the raised edge of the section to be fitted in. O’Connor stood outside of the boiler, but with head and shoulders in through the fire door of the boiler. He was pressing down with his • hands on the raised edges to force the sections into position. Cunningham had his knee on the raised edges and was pressing down; the edges did not yield; he took the hammer and struck the raised edges between himself and O’Connor with the hammer. Scales or dirt flew into his own and into O’Connor’s eyes, causing later, as plaintiff claims, ulcers to come on his eyes. As a result of the ulcers the sight of one of O’Connor’s eyes is substantially destroyéd.

The act which caused the scales to fly into O’Con-nor’s eyes was the act of Cunningham, but was in a detail of the work. It was an act which any common laborer could perform, and was not ■ an act of command, direction or control. Larson v. B. H. R. Co., 134 App. Div. 679, 682. Does the Labor Law (§ 200, subd. 2) apply and render the defendant liable?

This section, as it stood in 1909, read as follows: “ When personal injury is caused to an employee, who is himself in the exercise of due care and diligence at the time, * * *. 2. 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, or in the absence of such superintendent, of any person acting as superintendent with the authority and consent of such employer; the employee * * * shall have the same right of compensation and remedies against the employer as if the employee had not been an employee of nor in the service of the employer, nor engaged in his work. ’ ’ It was held that this statute did not cover a negligent act of a superintendent done in a detail of the work. To render the master liable, the negligent act must be an act of superintendence. Quinlan v. Lackawanna S. Co., 191 N. Y. 329; Larson v. Brooklyn E. R. R. Co., 134 App. Div. 679. In 1910 the statute was amended to read as follows: “ When personal injury is caused to an employee who is himself in the exercise of due care and diligence of the time * * *. 2. By reason of the negligence of any person in the service of the employer intrusted with any superintendence or by reason of the negligence of any person intrusted with authority to direct, control or command any employee in the performance of the duty of such employee. The employee shall have,” etc.

The effect of this amendment has been passed upon by the Appellate Division in each department. Cashmore v. Peerless Motor Car Co., 154 App. Div. 814, cannot be distinguished in its facts from this case at bar. The plaintiff, at the direction of Malone, a foreman, was holding a piece of steel shafting in a vise, when Malone struck the shafting, causing a piece of steel to fly into plaintiff’s eyes. After considering the amendment of 1910, and the Railroad Law (Laws of 1890, chap. 565; Laws of 1896, chap. 657, § 429), the court concludes: I think that the effect of this amendment is precisely the same as the amendment to the Railroad Law, and that the ‘ fellow servant ’ rule is entirely abrogated where the negligent act causing the injury is that of a person coming within the definition. The language is clear and the legislature has accomplished just what it intended, viz: that an employer should thereafter be liable for the negligent acts, not only of a servant intrusted with superintendence, but also of a servant who, though not possessed of the authority of a superintendent, is intrusted with the authority to direct, control or command another employee in the discharge of his duty, and no matter how limited the authority of the negligent servant may be, if he comes within the statutory definition, the master is liable for his negligence; he is the alter ego of the master while in the discharge of his duties.” This department considered the amendment carefully in Famborille v. Atlantic, Gulf & P. Co., 155 App. Div. 833, 839. and reached the conclusion (841), “ that, under the amendment of 1910, the master is liable for an injury to a servant caused by the negligence of a superintendent or any person intrusted with authority, the servant himself being free from contributory negligence.” And again, on the same page, the court said: “Plaintiff’s intestate having met his death while an employee of the defendant by reason of the negligent acts of defendant’s superintendent, while both were engaged in the master’s service, the jury having found that the deceased was free from contributory negligence, the plaintiff was entitled to recover.” This seems a plain holding that the fellow servant defense could not be sustained when the negligent act is that of a superintendent or one intrusted with authority, whether or not said act is in a detail of the work. This case is affirmed (213 N. Y. 666) and is approved in Sherman v. Mason & Hanger Co., 162 App. Div. 327, 330. In Svendson v. McWil liams, Inc., 157 App. Div. 475, the superintendent told the plaintiff to knock off a cleat from a rudder post. Plaintiff put himself in a position to obey, when the superintendent pried out the bottom of the rudder post, causing the plaintiff to fall. The court said, on page 475: The nature of the alleged negligence is such that it would have fallen under the ordinary rule of a ' detail ’ of the work, unless that rule has been abrogated or modified by the amendment to the Labor Law in 1910. We have held recently, in Cashmore v. Peerless Motor Car Co., 154 App. Div. 814, that the amendment of the Labor Law in 1910 had the effect of rendering the master liable for any negligent act of one who was a superintendent even in what would otherwise be considered a ‘ detail ’ of the work.” This case involved the identical question here and was affirmed in the Court of Appeals without opinion. The Court of Appeals could not have affirmed the judgment without affirming the above construction of the statute. See Gilpin v. Ruppert, 155 N. Y. Supp. 1064; Griffith v. American Bridge Co., 163 App. Div. 599, citing the Svendsen case. In Pelow v. Oswego Const. Co., 162 App. Div. 840, it is held that, under said section 200, subdivision 2, an employer is liable for personal injuries caused to an employee who is himself in the exercise of due care and diligence at the time, by reason of the negligence of any person in the service of the employer intrusted with any superintendence or by reason of the negligence of any person intrusted with authority to direct, control or command any employee in the performance of the duty of such employee. The liability is not limited to negligence in superintendence or control; the fellow servant defense does not apply; the Famborille case and the Svendsen case are cited as authority. The defendant refers to Sherman v. Mason & Hanger Co., 162 App,. Div. 327, as an authority in its favor; but it must be noticed that in the opinion it is said: The court charged the jury, without objection or exception or request for any other or different submission, that the evidence presented no question of negligence save under the Labor Law'; that the sole question of negligence for determination was whether the accident happened by some negligence of Bate-man in a matter of control, direction or command, and that unless such negligence was proven the verdict must be for the defendant. I must confine my consideration upon this appeal to the case as thus submitted.” And, at the end of the opinion, the court says: “I should add that this opinion is confined to the theory of the submission of this case, and it is not ’ intended to indicate rescission or modification of the views of this court as expressed in Cashmore v. Peerless Motor Car Co. and Svendsen v. McWilliams, Inc., or any different view than that taken by this court in its Third Department in Famborille v. Atlantic, Gulf & Pacific Co.” The trial court having said that there could be no recovery unless the accident happened by some negligence. of Bateman in the matter of control, direction or command, the Appellate Division, concluding that there was no evidence to show negligence of Bateman in a matter of control, direction or command, held there could not be a recovery. Evidently that opinion was not intended to modify any of the holdings above cited.

But there are two cases in this, department which seem in conflict with the above and the defendant insists that the trial court should be bound by those holdings. In Hotaling v. Stewart & Co., Inc., 165 App. Div. 723, it is said, referring to section 200, subdivision 2: “ The question, therefore, is whether he (the plaintiff) received an injury by reason of the negligence of a person in the defendant’s service who was intrusted with superintendence. To come within this provision it must appear that the negligent, act was done by the person while exercising acts of superintendence. (Larson v. Brooklyn Heights Railroad Co., 134 App. Div. 679.) ” But the authority cited is a case which arose and was decided before the amendment of 1910; and the facts make it doubtful if there was any liability under the act in any construction of the statute. The court does not cite any of the authorities herein-above cited, makes no reference to the Famborille case, decided in the same department, and it is unnecessary to conclude that it intends to change the construction there adopted. Hall v. New York Telephone Co., 168 App. Div. 396, decided in this department, seems to present a real difficulty. The opinion is written by the same learned justice who wrote in the Famborille case. The trial court denied a motion for a non-suit, stating that he would submit the case to the jury upon two propositions, in addition to that of contributory negligence, one under the common law count and the other under the Employer’s Liability Act as amended by the Laws of 1910, chapter 352. The question under the Employer’s Liability Act was this: 2. Did the pole fall through the failure of the foreman to exercise reasonable care, considering the situation and surrounding’s there on that day; did the foreman’loosen his hold upon the cant hooks'; did he allow the pole to tnrn, and by reason of its turning, did it fall? ” The court says: We think the court erred in submitting to the jury the second proposition, for the reason that the work of Farmer in holding the cant hooks was not a detail of superintendence, but was the work of a fellow servant, and hence his negligence in allowing the cant hooks to slip, if negligence it was, was negligence for which the master was not liable.” This seems a direct statement that, although the negligent act was the act of a foreman — one having authority to direct, etc.— still, because it was not an act in a detail of superintendence, the fellow servant rule applies. The foreman, the plaintiff and other co-employees were engaged in raising a heavy telephone pole. The foreman stood at the butt of the pole, near the hole which was to receive it. He had a cant hook in either hand to hold the pole from rolling. He directed the men, who were using pikes to raise and steady the pole, where to stand. The pole began to swing away from the plaintiff. He directed one of the employees to go to the other side and hold it back. The pole was pushed so strongly that it swung back toward the plaintiff; he was not able to hold it, the pole rolled and fell upon the plaintiff, inflicting serious injuries. The jury might have found that the act which caused the pole to roll and fall was the negligent act of the foreman; and the Appellate Division has stated that for such negligence the defendant is not liable under the Labor Law. Larson v. Brooklyn Heights Railroad Co., supra, is cited (as in the Hotaling case) as authority for the proposition that the plaintiff “ Cannot recover under the Employer’s Liability Act for the injuries so received, for at the time the foreman was engaged in a mere detail of the work and not in an act of superintendence. That, while a foreman is performing a part of the work which he might have assigned to any common laborer, he is not discharging the duties of a superintendent.” And the court cites the Famorille case and Sherman v. Mason & Hanger Co. The expression, “ detail of superintendence ” is used in the Hall case and in another recent decision; but the statute does not use it. The word “ superintendence ” in the statute means all of superintendence; a “ detail of superintendence ” is a part of superintendence as much as a principal act of superintendence is a part. Inasmuch as the Svendsen case (which followed the Cashmore case) has been affirmed by the Court of Appeals, and this department has not disapproved of the Famborille case; and, inasmuch as the opinion in Sherman v. M. & H. Co. confines the decision solely to the one question submitted to the jury, and did not modify the holding in the Cashmore case, I conclude the decision in the Hall case must be distinguishable (though I am unable to discover the distinction) from the decisions which are apparently in conflict with it, and was not intended to disapprove the holdings in this department and in the three other departments; also that, since the amendment of 1910, the fellow servant defense is not available when the injuries were caused by the negligence of one intrusted with superintendence or with authority to direct, control or command an employee in his work, even though that negligence occurred in a “ detail of the work. ’ ’ This is the holding in Marion v. Coon Const. Co., 216 N. Y. 178, 180. The motions for non-suit and dismissal are denied.

Motions denied.  