
    Elizabeth Faith, as Administratrix, etc., of John W. Faith, Deceased, Appellant, v. The New York Central, and Hudson River Railroad Company, Respondent.
    Fourth Department,
    November, 1905.
    Negligence — death of employee while removing front of locomotive— Employers’ Liability Act — contributory negligence.
    When it has been the custom to remove the front of a locomotive boiler by cutting away all the bolts holding it save one at the .top, and then, after attaching a tackle, cutting away the remaining bolt, it is negligence for the foreman directing such work to stand by and allow all the bolts to be cut so that the boiler front falls upon a workman attempting to attach the tackle for which he has been sent during the cutting of the bolts.
    As the foreman, in the absence of the general superintendent, was, in fact, directing the work in person, his negligence is chargeable to the master under the Employers’ Liability Act.
    As the workman killed was not warned of the fact that-all the bolts had been cut, contrary to the custom which he knew to exist, it was not contributory negligence on his part to fail to look to see whether the preliminary work done in the presence of the foreman had been properly done.
    Nash, J., dissented, with opinion, in which Williams, J., concurred.
    Appeal by the plaintiff, Elizabeth Faith, as administratrix, etc., of John W. Faith, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 13th day of September, 1904, 1 upon a nonsuit granted by the court after a trial at the Onondaga Trial Term, a verdict by the jury having previously been rendered in favor of the plaintiff. ’
    The action was begun under the Employers’ Liability Act, so called, being chapter 600 of the Laws of 1902, on the 18tli day of July, 1903, to recover damages resulting from the death of plaintiff’s intestate alleged to have been caused solely through the negligence -of the defendant.
    
      Frank C. Sargent, for. the appellant.
    
      Frank Hiscock, for the respondent.
   McLennan, P. J.:

The accident which is the subject of this action occurred on the 17th day of March, 1903, at the “ roundhouse ” of the defendant in the village of East Syracuse, N. Y. The deceased at the time was in defendant’s employ and had been continuously for more than twenty years. He was an experienced' boilermaker, was then engaged in that capacity, and was entirely familiar with the methods adopted by the defendant of doing such work. One Peters was superintendent and had general supervision of all work done at the roundhouse and of the men there employed ; had authority to hire or discharge in his discretion. There were several branches or distinct classes of work being carried on, each of which was under the immediate supervision of a foreman or inspector, and. the men employed--in each were under the control and subject to the direction of the foreman of such branch of work. One Morris- was foreman, or- inspector of the department where engines and boilers were repaired, and the deceased, four or five other boilermakers and two helpers were engage^, in that work under'him. Morris directed what work each one of them should do and the manner of doing it. On the day in question Morris, having discovered that the front of one of the engines was cracked,, directed that it be detached from the engine and removed, which "would ordinarily occupy about twenty minutes, and the deceased and two of the other boilermakers were directed by him to do the work. The engine front, so called, which was to be removed is a circular casting about six feet in ' diameter, Weighs about 1,200 pounds, has a doór M the centei Weighing about 200 pounds, which swings on hinges,, and the cast-" ting is fastened to the front of the boiler by means of -about -forty ■ .five-eighths-inch bolts extending through the casting and a projection extending around the front of the boiler, such bolts being held in place by nuts. The method of removing' stich engine front long employed by the defendant Was first to take out the bolts with the exception^of one at the top> Which- was; sufficient, to hold it in place, then open the door and fasten a tackle or hoist in the opening, and then, after cutting the last bolt, hoist or swing the casting from the engine. At the time Morris directed two of the" boilermakers in defendant’s employ, and who were subject to Ms orders, to detach - the engine front preparatory" to its removal. They immediately commenced to take out or cut the bolts, and while so engaged the evidence tends to show that Morris-stood near by and Was watching the progress of the Work; that in his presence they removed or cut all the bolts holding the casting in place, without Objection from .Morris, and failed tó. leave one bolt to "hold the casting in place, until the tackle Was made fast, as had been. the custom and the method adopted of doing such work by the defendant. In the meantime, plaintiff’s intestate had gone- after- the-tackle fir hoist with which to remove the casting. He immediately opened the -door; started to-fasten the, tackle in the opening, when it .fell upon -him ahd caused such- injury :as that his death resulted three" days -later. He was in "no manner warned that the last bolt had been cut or that - the preparation for the removal of the casting was. not the same as had always previously been made. The evidence justifies the finding that Morris, the foreman, knew that the usual method of doing such work had not been followed, and that the cutting of all the bolts before the tackle was fastened would be dangerous to the person attempting to attach the same. The evidence, we think, very conclusively establishes that the foreman, Morris, was guilty of negligence, and that to such negligence was due the accident. The jury had a right to find that he knew the last bolt in this heavy casting • had been cut. or removed, and, therefore, that any jar, or especially •the weight of the door when thrown open, as was necessary in order to fasten the hoist or tackle to the casting, would cause it to fall. Yet, notwithstanding such knowledge, he permitted the deceased to go in front of it and open the door, preparatory to fastening the tackle, without in any manner warning him of the danger.

The question is whether upon this state of facts the defendant is liable to plaintiff for the negligence of the foreman, Morris. We may assume that at common law it would not thus be liable, but we think, under the Employers’ Liability Act, upon the evidence, it was a question of fact for the jury whether or not such negligence was attributable to the defendant, depending only upon the question as to whether or not Morris at the time was acting as supérintendent of the' defendant or, at the time was acting in that , capacity. The act provides in substance, so far as it is applicable to the question now being considered, that where personal injury is 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 entrusted 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 or, 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.” We think the evidence in this case very conclusively establishes that Morris, although designated as foreman or inspector, was intrusted with and was exercising superintendence. It shows that at the time in question the general superintendent, Peters, was absent and that Norris was acting as such with the authority of consent of such employer, such authority or consent being evidenced by the manner of doing business, extending over a period of years. The deceased and the other boilermakers were under the control of and subject to the direction of Norris as to every part of the work. He could say to one “ Go ” and to the other “ Come,” and they obeyed. ' In the case at bar, two were directed to cut or remove the bolts and the deceased, was to bring the tackle and make it fast to the casting. All was being done under his supervision. He occupied precisely the same relation to the men under him as Peters, the general superintendent, would have done had he been present. Norris was not engaged in performing a detail of the work, but was engaged in superintending the doing of an entire job. If the general superiptendent, Peters, had'stood by and seen a dangerous structure erected by certain employees, and had permitted another einployée who was ignorant of the: danger to go upon it without warning and thereby sustain injury, there could be no question but that the defendant would" be liable for such negligence on the part of Peters. Under the plain meaning of the “act” Norris for the time being, in, the absence of Peters, stood "in his place, and the defendant was likewise liable for his negligence. It would not be profitable to discuss the cases which declare the rule of liability at common law. The clear purpose of the Employers’ Liability Act is to "extend such common-law liability and to make an employer liable to an employee for any injury resulting from the negligent acts or omissions of any other employee, no matter what his grade or rank, providing at the time he was acting as superintendent with the authority or consent of such employer, and provided that such negligent act or omission relates to the duties of superintendence and .does not relate to. a mere detail of the work which such acting superintendent may undertake to perform. Upon the evidence we think the jury were justified in finding that Norris was “ acting as superintendent with the authority of consent” of the defendant, and that his negligence was, under the statute, attributable to it.

It is- urged that the evidence fails to show that plaintiff’s intestate was free from contributory negligence, because, it is alleged, he could" have known whether or not all .the bolts-had been removed, and, therefore, whether it was safe, for him to go in front of the casting;. that a glance by him would have disclosed the exact situation. The test in such cases has always been held to be, what would a person of ordinary. care and prudence have done under like circumstances? In the case at bar an “ engine front” was to be removed, presumably in accordance with the rules adopted by the company and with the methods for years employed by it. The deceased saw that the work was being done in the presence of an experienced foreman who was familiar with such rule and method. When the deceased came to perform his part of the work, was he guilty of negligence because he failed to look and see whether the .preliminary work done in the presence of the foreman had been properly , done ? The deceased was not required, in order to absolve himself from the charge of contributory negligence, to have examined and investigated to ascertain that all his coworkers who had preceded him upon the job had properly performed their work. He had a right to assume that the foreman, who was there for the purpose, had knowledge as to that, and that he, the deceased, would not be permitted to go into a place of danger created in the presence of the foreman without warning from him.

Upon the question of assumption of risk by the deceased, we think the jury were amply justified in finding adversely to the defendant. We do not hold—it is not necessary to hold in this case — that cases may not arise where the evidence so conclusively establishes assumption of risk that it may be so decided as matter of law. That proposition was in no manner involved in Hoehn y. Lautz (94 App. Div. 14), decided by this court.- In that case it was stated in the opinion (p. 18) that the intestate was himself responsible for allowing an excessive amount of steam to go into the drum, which was the cause of the accident. In this case, if we are right in our conclusion that the accident occurred through the negligence of the foreman, Norris, and that his negligence was the negligence of the defendant, the deceased did not assume such risk. At common law, if the danger was caused by the negligence of the master and was unknown to the servant injured thereby and'could not have been ascertained by the exercise of ordinary care and prudence, there was no assumption of risk. We think the case is entirely barren of evidence tending to show that the deceased assumed the risk of the accident which befell him, unless we should hold, that he assumed the risk of the negligence of Norris who, as We have held, was for the time being the alter ego of the defendant. We think such was not the rule, even under the common law, and certainly not under the Employers’ Liability Act.

We conclude that upon a fair consideration of the evidence in this case, the jury was entitled to find as it did under v-he very fair and impartial charge of the court, to which no exception was taken by the defendant, that the defendant was guilty of negligence which caused the injury; that the plaintiff’s intestate was free from contributory negligence and that he did not assume the risk. No -question is made by respondent’s counsel upon this appeal that the verdict is excessive.

We conclude that the judgment entered upon the-nonsuit should be reversed;, with costs, and that judgment should be directed in favor of the plaintiff upon the verdict of the jury, with costs.

All concurred, except Nash, J., who dissented in an opinion, in which Williams, J., concurred.

Nash, J. (dissenting) :

I do not think that it can be properly said that the position of Norris, the foreman in charge of the work in which Faith was employed, was that of superintendent, or that he was at the time that Faith received the injury which resulted in his death, within the meaning of the Employers’ Liability Act, a person exercising superintendence, or whose sole or principal duty was that of' superintendence. He was foreman of boilermakers under direction of Peters, the general foreman, from whom Norris received his orders and distributed the. work among the men under him. Norris worked with the boilermakers, looked .after the work and inspected boilers. His labor of inspecting boilers was that when the fire was out of the boiler, out of the firebox, and it was cold, he examined the stay-bolts and flues. “ He gets into the boiler and looks it over and determines whether it needed repairs or not. In case he decided that some repairs were needed on the boiler, he gave instructions to the men to make the repairs.” He inspected all the boilers that came in. There were about fifty or fifty-five boilers for him to look after every day, to give them external inspection. He inspected on the average fifteen or twenty on the inside daily. He set the boilermakers at work on any particular boiler; he did not stay with them until they finished their work; he would go about to the different men and different engines. In the ordinary course of business he would have some of them working on one job and some on another. At the same time he was about the shop looking after the next job. When their work in repairing a boiler was done Horris inspected it, and if he did not think it was done right he made them do it over or fix it. This is the evidence of Peters, the general foreman.

There is no question as to the character of the work in which Horris was engaged. He says: “ My position at that time was foreman of boilermakers. * * * I inspected all locomotives that came in from the east and west on both' divisions and looked after giving out the work and seeing that it was done properly. I did not do any of the repairing myself at that time. I did all the inspecting myself. In inspecting' I used a hammer. It was my business in the ordinary course of events down there' to get inside of those boilers with a hammer to see how they looked, and whether they were soiind or in order 'or not, and I inspected them on the outside. I did not hammer them any on the outside to do that. In the course of inspection I also looked at the staybolts and different parts. That work in doing that inspection, as I have described, was the manual labor that I did. * . * * If I found anything the matter with a boiler I gave the work to some boilermaker under my charge. * * * I couldn’t stand right over one job when I had-different .men to look after. I was around from one to another and inspecting the engines as they came in. The engines had to be inspected immediately on their arrival. I was not there when they commenced working on that engine on which Mr. Faith was hurt. The engine had a bursted flue and that necessitated the removal of the front. I told these men to remove it, Elmer 'Depán, John Faith and Mike Kelly. I say I was not present when they began their, work. When I first saw it, when I got there, Depan was taking off the nuts. He had got two or three off when I went by the front first. I went down to the dump pit then to inspect an engine. That was about 300 feet from the place where this engine stood, I should judge. I-couldn’t say -just how long I was down there, At that time, when I went by this engine first, and Depan was taking off the first-of the tints, Kelly was-' -also there, Mr, Kelly and Depan. Faith was-not there at that time he came later oil. I might have been down at the pit making that inspection ten. or fifteen or twenty minutes. ' Then. I went back to the roundhouse. I passed by this engine... • I went to look after another job in the roundhouse there. It was over in the other roundhouse, the eastern roundhouse, where I went then. That, was the- seconff time I passed and saw this job. ' I came back again before this job was finished; ,’with reference to' the number of nuts removed' the second timé I saw it, Depan was up on top and Faith stood right in front, and he had about, I should say, six or seven nuts yet-to remove. I did not see it again before it fell.”

Clearly within the case of Vogel v. American Bridge Co. (180 N. Y. 373) Korns was not the alter ego of- the. defendant, but on the contrary-, a fellow-workman with Faith, the part taken by the latter being" a mere detail of the work in which they were both employed.

The judgment should be affirmed.

Williams, J., concurred.

Judgment "entered upon the nonsuit reversed, with costs to the appellant, and judgment ordered in favor of the plaintiff upoti the . verdict, with costs.  