
    CATHERINE HART, as Admr’x, &c., Respondent, v. THE N. Y. FLOATING DRY DOCK Co., Appellant.
    
      Negligence—fellow-servant, when deemed to be acting in place of employer —liability of employer for acts of.
    
    Where plaintiff seeks to recover from his employer, damages for injuries caused by the negligence of a fellow servant, upon the theory that as to the matters in regard to which the negligence occurred, such fellow servant was acting in the place of the employer, it is error to leave it entirely to the jury, to determine what acts and duties the defendant is required to perform and discharge as principal.
    Where the business of defendant, a dry dock company, is raising, repairing and again lowering vessels, the court should charge that the duty of the defendant is to supply its servants with suitable and safe machinery and appliances, with competent and skillful coworkers, and to make and promulgate suitable and sufficient rules for the conduct of its business in its ordinary run, and for any extraordinary occasions that "might reasonably be anticipated. The jury should then find whether, as to the act in question, defendant has been guilty of any neglect of these duties.
    A foreman of one of defendant’s docks, who at the time the accident occurred, was engaged in superintending the raising of a vessel in said dock, was not, as to such act, the alter ego of the company, and it cannot upon that ground be held liable for his negligence or for his errors of judgment in directing said work.
    
      Before Sedgwick, Ch. J., Freedman and Russell, JJ.
    
      Decided December 4, 1882.
    Appeal by the defendant from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial.
    The action was for damages for the alleged negligence of the defendant, whereby the plaintiff’s intestate lost his life.
    The defendant is a corporation owning a dry dock and engaged in the business of repairing vessels. The plaintiff’s intestate was in the defendant’s employ as a laborer. On October 14, 1881, the defendant took upon their dock for repairs the Pacific mail steamer, Crescent City. On October 17, the repairs having been completed, the dock was lowered and the braces and fastenings were removed. An attempt was made to tow the vessel from the dock by tugs, but it was found that the tugs could not move her, as the after-part of the vessel had grounded on the keel blocks and was held fast; the water was not high enough to float the vessel. The defendant’s foreman, McCann, then directed that the tugs leave and the vessel be refastened, and the dock, with the vessel upon it, be raised from the water so as to wait for the next high tide. This was done. When the dock had been partially lifted, McCann noticed that the vessel trembled somewhat, but notwithstanding this he gave no direction to stop raising the dock. When the deck of the dock was about on a level with the water, the vessel careened to one side, crushing and killing the plaintff’s intestate, who at the time, in the performance of his duty, was engaged in adjusting one of the bilge blocks on the rear of the dock.
    The method of receiving and raising vessels on the defendant’s dock was as follows: Before a vessel is placed in the dock a plan of it is given to the foreman, who arranges his keel, dock, and bilge blocks, to hold and steady the vessel in its place. Along the center of the dock there runs a beam or truss, on which were placed the keel blocks on which the weight, of the vessel rested, and from the side of the dock, blocks called bilge blocks were run out to support and hold the bilge of the vessel, to steady rather than' to support. These bilge blocks ran over what are called iron ratchets containing teeth one half an inch in depth, and to their rear were fastened what are called pawls, weighing five pounds, which, when inserted in teeth of the ratchets, held the bilge blocks in position. The plan of the vessel having been given to the foreman, the vessel was floated in and properly centered over the keel blocks, which were held in position by iron dogs to the beam running along the center of the dock. The dock was then raised until the keel of the vessel grounded upon the keel blocks, and the bilge blocks were run out and fastened in their places. It is essential that a correct center should be obtained—that is, .that the keel should rest exactly on the centre of the keel blocks, as otherwise when the dock is lifted and the support of the water removed from the vessel, there is great danger of its careening by reason of the undue weight resting on one side consequent upon, the keel not resting on the center of the blocks.
    McCann was the foreman or dock-master of sectional dock No. 3 belonging to the defendants, had been in its employ in that capacity nearly four years. The defendant owned two other similiar sectional docks.
    As foreman of No. 3, McCann operated the dock.and gave orders ; he did not hire or discharge men, did not purchase or supply machinery. He had raised three hundred and sixty-five other vessels in the same way this was raised, and never before had an accident. The defendant had a president in the vicinity of its-docks, in general charge of its business.
    
      While the precise cause of the accident was not conclusively shown, the evidence all tended to show, and the argument of the respondent was, that it occurred, because, before raising the dock, after the tugs had failed to haul the vessel off, the vessel was not properly centered by McCann, inasmuch as to properly center a vessel it is necessary that she should be floating free, which this vessel was not: and because the attempts of the tugs to pull the vessel off had so loosened the keel blocks and bilge blocks as that the center of gravity on the keel blocks was not preserved, and so, when the vessel arose out of the water, it careened. According to the testimony, this was the first time a vessel had been, raised after having been lowered upon completion of repairs.
    A motion was made to dismiss the complaint, both at the close of the plaintiff’s case and at the close of the testimony, on the grounds (1) that there was no-negligence on the part of the defendant; (2) that if the accident occurred from the negligence of McCann, it was the negligence of a fellow servant; (3) that the pawls and rachets were proved to have been in good condition, and if they were not it was as well known to-the decedent as to the defendant; and (4) the decedent’s contributory negligence.
    This motion was denied and the court, among other things, charged, “ If the jury believe from the testimony, that on October 17, 1881, the time of the accident, McCann was the general superintendent of the dock in question and had sole and entire charge of the raising and lowering said dock and the placing of vessels-therein and removing the same therefrom, he was, in respect to such acts, the alter ego of the defendant, and for his negligence, if any, in the performance of these-acts, or any of them, the defendant would be liable.” To this the defendant excepted.
    The court- also charged, “If the jury believe from the testimony that the lowering and raising of the dock in question and the placing of vessels thereon and removing the same therefrom, were acts which the defendant corporation was required to perform as principal, it is immaterial to whom the performance of such acts, or any of them, was committed, as the defendant would be liable for negligence or want of proper care in the performance of such acts.” To this the defendant excepted.
    The court also charged substantially, that if the failure properly to re-center the vessel was the cause of the accident, or if failure to lower the vessel when the trembling became apparent showed want of care, then that the plaintiff could recover.
    The defendant, in various forms, made requests to charge the converse of these propositions in regard to the responsibility of the defendant for the negligence of McCann, which the court refused.
    In submitting the case to the jury the court asked them, in addition to a general verdict, to answer the following questions: 1. “Was the plaintiff’s intestate free from contributory negligence ?” (To which the jury answered “yes.”) 2. “Was the defendant, in respect to such acts and duties, as it was required to perform and discharge, guilty of negligence or want of proper care in the matters alleged, in the complaint?” (To which the jury answered “yes.”) 3. “ Did the defendant furnish its employees, for use in the transaction of its business, good and sufficient pawls, ratchets, and keep them in repair at the time of the accident in question?’.’ (To which the jury answered “yes, the latter out of repair at the time of the accident.”)
    The jury rendered a verdict for the plaintiff for $4,200.
    Upon the defendant’s motion for a new trial upon the minutes, the learned judge below delivered the following opinion:
    
      
      Benedict, Taft & Benedict, attorneys, and E. N. Taft, of counsel, for the appellant.
    
      T. C. E. Ecclesine, attorney, and J. C. Tomlinson, of counsel for the respondent.
   “ Arnoux, J.

Where the master places the entire charge of his business in the hands of an agent, the neglect of the agent in supplying and maintaining suitable instrumentalities for the work required is a breach of duty for which the master is liable (Mullan v. Phila. & Southern Mail S. S. Co., 78 Penn. St. 25; 21 Am. R. 2, cited with approbation in Crispin v. Babbitt, 81 N. Y. 516-521; Corcoran v. Holbrook, 59 Id. 517). A corporation necessarily places the entire charge of its business in the hands of its agents, and as the jury has found that there was a breach of duty in this regard, if it could be established that the ruling of the court was wrong in respect to the position of McCann, nevertheless the verdict should be sustained. We think that this case, in respect to the duty that the master owes his servant as to the acts of McCann, is distinguishable from the cases of Crispin v. Babbitt (81 N. Y. 516), and McCosker v. L. I. R. R., (84 N. Y. 77). To entitle the defendant to a new trial he must affirmatively establish that the verdict was wrong in both branches of the case. This, after careful examination, we think he has failed to do, and therefore, the motion for a new trial is denied.”

By the Court.—Horace Russell, J.

[After stating the facts as above.] The fundamental error into which, as it seems to me, the learned judge who tried this case below, fell, was in leaving it entirely to the jury to determine what acts and duties the defendant was required to perform and discharge as principal, instead of holding, as a matter of law, that “the duty of the defendant was to supply its servants with suitable and safe machinery and appliances, with competent and skillful co-workers, and to make and promulgate sufficient rules and regulations for the conduct of the business in its ordinary run and for any extraordinary occasions that might be reasonably anticipated ” (Slater v. Jewett, 85 N. Y. 61, 73), and then asking the jury to find whether the defendant had failed in the performance of its duty in any of these respects. The fact that the defendant’s business is raising, repairing and again lowering vessels does not require it to take charge of the details of this business as principal, or make it liable to a servant for the negligence of a fellow-servant who is put in charge of such details.

It might as well be left to a jury to say whether or pot it is the duty of a railroad company to conduct trains as principal, so that every railroad conductor could be found by the jury to be the alter ego of the company.

The defendant can be held liable only for neglect of its duty in respect to the matters which I have quoted from the opinion of Chief Justice Folgker. Whether or not McCann was the alter ego of the defendant was a matter of law to be determined by the court, not a matter of fact to be decided by the jury. The decision in Mullan v. Phil. & South. Mail S. S. Co. (78 Penn. St. 25 ; 21 Am. R. 2), was approved in Crispin v. Babbitt, only to the extent of this proposition : “Where the master places the entire charge of his business in the hands of an agent, the neglect of the agent in supplying and maintaining suitable instrumentalities for the work required, is a breach of duty for which the master is liable.” The words which I have put in italics were so put by Judge Rapallo in his opinion (81 N. Y. 521), and he goes on to say: “ These were master’s duties. In so far as the case from which the citation is made goes beyond this, I cannot reconcile it with established principles.” “

Was McCann the alter ego of the defendant so that his negligence was the negligence of the defendant, or was he only the fellow-servant of the plaintiff’s intestate, for whose negligence in this case the defendant is not responsible ? This question is not to be determined by the relative grade or rank of McCann and Hart (Crispin v. Babbitt, 81 N. Y. 516; Slater v. Jewett, 85 N. Y. 61; McCosker v. L. I. R. R. Co., 84 N. Y. 77.)

In Crispin v. Babbitt, a person known as “business and financial man,” in general charge of the business, the defendant being absent most of the time, was held to be a co-employee in regard to the business out of which the accident befell.

In Slater v. Jewett the conductor of a train, having general charge of it, was held to be fellow-servant of the fireman who was killed by his negligence.

In McCosker v. L. I. R. R. Co., the yardmaster who employed and discharged drillers (of whom the deceased was one), made up trains, distributed cars in and about the yard and repair shops, was held to be fellow-servant of the driller, who worked under his command and was killed by his negligence.

According to the testimony before us McCann was only foreman of sectional dock No. 3. It was no part of his duty to supply machinery or to employ or discharge men; that was all done by the president of the company, who devoted himself exclusively to the general management of the business; but even if it had been, under the decision in Crispin v. Babbitt, McCann was not, at the time of the accident, engaged in work which the law requires the defendant itself to do, but was the fellow-workman of the intestate.

Earle, J.,

in his dissenting opinion in that case, says this distinction, that a person could at the same time be in one respect the alter ego of the superior, and in another a fellow-workman with an employee, was never recognized before; however that may be, it is recognized now. And though Crispin v. Babbitt was decided by a bare majority of the court of appeals, the case of McCosker v. L. I. R. R. Co. was a unanimous decision following the rule adopted in Crispin v. Babbitt.

It is quite apparent that the accident in this case was occasioned by McCann’s failure to properly center the vessel before re-raising her, or in attempting to re-raise her at all, under the circumstances ; it was a thing which had never before been attempted. That is to say, McCann used bad judgment in the matter.

In Crispin v. Babbitt the “business and financial man” let on steam and started the machinery when he ought not to have done so. In McCosker v. Long Island R. R. Co., the yardmaster signaled the engine “ negligently and at the wrong time.” And in Slater v. Jewett the conductor neglected to direct the engineer to stop at a station when telegraphed to do so.

If, in these cases, defendants were excused from liability for the gross negligence of persons who were in charge of the business in hand, in the absence of their superiors, how can the defendant be held responsible for the bad judgment of its foreman about a mere matter of detail ?

The cases relied on by the respondent to take this case out of the rule laid down in Crispin v. Babbitt (Flike v. Boston & Albany R. R. Co., 53 N. Y. 549 ; Booth v. the same, 73 Id. 38 ; Fuller v. Jewett, 80 Id. 46) are easily distinguishable. The superior was held responsible in each one of these cases, because it deputed to an agent something which, as principal, it was bound to do, within the rule I have quoted as stated by Judge Folger.

In the first two cases, which arose out of the same accident, it was held to be the duty of the railroad, company to supply suitable machinery and sufficient help, and if it delegated either of these duties to an agent, no matter what Ms grade or position, Ms act in that regard was the act of the defendant; and so, the railroad company was held responsible for an accident which arose because a heavy freight train was sent out with only two brakemen when it should have had three, and would have had three, but for the failure of a subordinate to awake the third, who had overslept .himself.

It is worthy of remark that Allen, Grover and Folger dissented from the decision in the Flike case. That decision, however, does not apply to the case before us, because there was no proof or claim on the trial which we are reviewing that sufficient help was not supplied by the defendant.

In Fuller v. Jewett an engineer had been killed by the explosion of a boiler, which, the judge says in his opinion, “ it is quite clear, upon the evidence, was in a dangerous condition at and prior to the time of the accident.” And it was held that, inasmuch as it was the duty of the corporation to keep its.machinery in proper condition, if it delegated that duty, the neglect of the person to whom it delegated it could be imputed to the company.

Under these cases, it seems to me quite clear that McCann was not the alter ego of the defendant, and that the learned judge below erred in refusing so to charge, and in charging that the defendant was responsible for acts of negligence imputable only to McCann.. For this error there should be a new trial.

Nor was the error cured by the finding of the jury that ratchets and pawls were out of order at the time the accident occurred. There was little, if any, evidence to sustain such a finding. It was based mainly upon conjecture. Nor does the evidence show, nor did the respondent’s counsel claim in his very elaborate and able argument before us, that the injury arose from any such cause.

Judgment and order reversed and new trial ordered, with costs to abide the event.

Sedgwick, Ch. J., and Freedman, J., concurred.  