
    Tendrup v. John Stephenson Co., Limited.
    
      (Supreme Court, General Term, First Department.
    
    January 28,1889.)
    ¡Master and Servant—Negligence of Master—Dangerous Premises.
    Plaintiff, an employe of defendant, descended, in the course of his work, a staircase which was securely fastened, but had often been moved to make room for work. A co-employe, being ordered to put a machine in position, moved the staircase a short distance to make room for the machine, and, while he stepped aside to get nails to fasten it, plaintiff ascended the stairs, which gave way, and he was injured. Held, that defendant was liable for the injury. Bartlett, J., dissenting.
    Appeal from circuit court, New York county.
    Action by Lauris Tendrup against J ohn Stephenson Company for personal injuries. Judgment for plaintiff, and defendant appeals.
    Argued before Brady, Bartlett, and Daniels, JJ.
    
      Wm. Allen Butler, for appellant. J. Esward Swanston, for respondent.
   Beady, J.

It will be perceived on reading the opinion of Baetlett, J., infra, that the act of removing the stairway was one authorized by the defendants ; the negligence of the so-called fellow-workman being his leaving the stairway without a guard or notice, and without being fastened, while he was seeking the means of finishing his work of removal. This makes a vast difference between this case and that of Crispin v. Babbitt, 81 N. Y. 516, to which Justice Baetlett refers. There the injury was occasioned by an act with which the master had no connection, directly or indirectly, and was one of carelessness. The fellow-workman carelessly let on steam, and the plaintiff was injured. “The true rule, I apprehend,»” said Chuech, C. J., “is to hold the corporation liable for negligence in respect to such acts and duties as it is required to perform as master, without regard to the rank or title of the agent intrusted with their performance. As to such acts, the agents occupy the place of the corporation, and the latter is liable for the manner in which they are performed. ” Here it appears that Jebliek, the fellow-workman, had been ordered by the defendant’s foreman to put a machine in position, to do which it was necessary to remove the stairs. They were removed, and hence the accident, for the reason that they were not secured, of which the plaintiff was ignorant. The distinctions made by the cases bearing upon the obligations and responsibilities of employers for the carelessness of one fellow-workl man, resulting in the injury of another in the same common employment, are somewhat shadowy, and therefore difficult of application; but where the act causing the injury is an independent one, and done by order of the employer, or his alter ego, as in this case, the liability of the employer seems to be settled, particularly when it is within the principle that he owes his servant the duty of furnishing him a safe and proper place to prosecute his work. Pantzar v. Mining Co., 99 N. Y. 368, 2 N. E. Rep. 24. In addition to this, it may be said that the case of Stone Co. v. Kraft, 31 Ohio St. 287, and quoted by Eabl, J., in his dissenting opinion in Crispin v. Babbitt, supra, exactly hits this case. Indeed, that opinion will be found sustained by authorities the doctrines of which make the defendants here liable for the plaintiff’s injuries. I am decidedly in favor of the affirmance of the judgment.

Daniels, J., concurs.

Baetlett, J., (dissenting.)

There was sufficient evidence to warrant the finding of the jury in favor of the plaintiff, unless it ought to have been held that his injuries were sustained in consequence of the negligence of a fellow-servant, for which the employer was not responsible. The plaintiff was a carpenter employed in the car factory of the defendant. He worked on the first floor of the building, and in the course of his employment was called upon from time to time to go into the basement. The first floor did not wholly cover the basement, but was open at one end. In order to allow the workmen to get up and down, a wooden stairway was made for use between the first floor and the basement, and was placed with the bottom resting on the basement floor, and the top resting against the beam which supported the boards of the first floor. These stairs were fastened below by wooden cleats nailed to the flooring, and above by means of nails. The plaintiff, who was at work on the first floor, went down this stairway to the basement, in order to saw some boards. After performing this task, he started to return by the same stairs. When he had nearly reached the top, the entire stairway fell under his weight, and he was thrown backward and knocked senseless. There is no doubt as to what was the cause of the accident. The stairway had been constructed so that it could be moved from one place to another without much difficulty, and it had previously been moved several times; generally, however, if not always, for the purpose of getting it out of the way for the time being. On the day of the accident, Mr. John Stephenson, the president of the corporation, had directed a workman named Torgensen to change the position of the stairs about five feet, and Torgensen had done so, putting cleats around the bottom, and securing it “good and fast. ” The stairway appears to-have been in this position when the plaintiff went down into the basement. Before he went up again, another workman, named .Jebliek, pried off the cleats, unfastened the stairs, and, after moving them about four feet, put them up unfastened, but in the right position, against the beam. Leaving them in this insecure condition, he stepped away a short distance to get his hammer and nails. Meantime the plaintiff, Ignorant of what had happened, had partly ascended the stairway, and before Jebliek was able to get back the accident had occurred. 2To specific order to remove the stairs, or interfere with them in any respect, had been given to Jebliek, but the foreman had told him to-put a large, bulky machine called a “planer” in position, and to do this it was necessary to take the stairs away from the place in which they had been put by the direction of Mr Stephenson. It was in consequence of this order to remove the planer that Jebliek undertook to change the position of the stairs.

Upon this evidence, it was plain enough that the injuries to the plaintiff were the direct result of negligence on the part of Jebliek, a co-servant in the same employment. The learned trial judge, however, instructed the jury that if Jeblick, who moved the stairs, was guilty of negligence in the matter, his negligence was the negligence of the defendant; and he based this portion of his charge expressly upon the rule that acts which the master, as such, is bound to perform for the safety and protection of his employes cannot be delegated so as to exclude the master from liability to a servant who has been injured by an omission to perform the act of duty. It is necessary to inquire, therefore, what obligation the defendant owed to the plaintiff in respect to the stairway which fell. A master owes his servant the duty of furnishing him a safe and proper place in which to prosecute his work. Pantzar v. Mining Co., 99 N. Y. 368, 2 N. E. Rep. 24. This includes the obligation to provide a safe and proper means of access to such portions of the master’s premises as the servant is called upon to go on in the course of his employment. The stairway, in the present case, when fastened in place as it was evidently designed to be at all times when in use, was not only appropriate for the purpose it was intended to serve, but safe for the workmen who had occasion to pass up or down. The accident was not attributed to any defect in material or construction, but solely to the fact that the stairs had been left temporarily unfastened. I do not think it can fairly be held that the master, under the circumstances disclosed by the evidence, failed to supply suitable instrumentalities for the safe performance of the work required. But, says the learned counsel for the respondent, it was absolutely necessary for the protection and safety of the workmen that the defendant should not only provide a safe stairway, but that it should be kept at all times in asafe and secure condition. In the first instance, however, the defendant was not bound to do more than to furnish a stairway which should be safe. This obligation was fulfilled. If proper cure was used in the selection of skillful and competent workmen to assist the plaintiff in the performance of his duties,—and there is no suggestion to the contrary,—the fact that the negligence of one of these co-servants had rendered the place where the work was to be done unsafe did nob impose any further duty upon the employer, in the absence of notice, actual or implied. Upon being notified that the premises had thus been rendered unsafe, or after such a lapse of time that notice would be inferred, the master will become liable for a failure to maintain the safety of the structure, but not until then, if the said place provided w'as safe and suitable at the outset, when the employment of the servant began. There is no reason to suppose that the president or any other officer of the defendant corporation ever contemplated that the stairway in question would be used by any of the workmen except when it was securely fastened in position. It is not pretended or suggested that •any one ever directed or sanctioned its employment under any other circumstances. A fellow-servant of the plaintiff, who had been ordered to remove a bulky piece of machinery, changed the position of this flight of steps to get them out of the way, but without any specific direction so to do, or, as he testified, out of his own idea entirely. He then left them, unsecured, only long enough to go some eight or nine feet for his hammer and nails, when the accident occurred; and it cannot be contended that this brief period of insecurity was sufficient to give the defendant notice that the stairway had become unsafe. To loosen the fastenings, as Jeblick did, move the steps a few feet, and leave them in position, and therefore apparently secure, without warning to any one, was to set a trap for those who might have occasion to come from "the first floor of the factory to the basement, or to go from the basement to the first floor: but this trap was the contrivance of a co-servant, and in nowise the result of that personal negligence on the part of the employer which is essential to the maintenance of such an action as the present. Cahill v, Hilton, 106 N. Y. 512,13 N. E. Rep. 339. I think that the doctrine of Crispin v. Babbitt, 81 N. Y. 516, applies, and that the act of Jeblick in moving the stairway was the act of a mere operative, in the course of his employment, and not in the performance of a duty resting upon the master. For his failure to secure the steps, as he should have done, the defendant is no more legally responsible, under the law, to the unfortunate plaintiff, than a railroad company would be to one of its employes who was injured in an accident solely •due to the negligence of a fellow-servant in leaving a switch unlocked. In my opinion the j udgment should be reversed.  