
    Frank Bicklemeyer, Respondent, v. Lackawanna Steel Company, Appellant.
    Fourth Department,
    November 17, 1915.
    Master and servant — negligence — injury to bricklayer while relining furnace covers — evidence — negligence of fellow-servant — res ipsa loquitur.
    Where in an action under the Employers’ Liability Act to recover for injuries sustained by a bricklayer while employed by the defendant in relining blast furnace covers with fire brick, it appears that while the plaintiff was at work on a cover which had been laid on the floor on top of some brick by means of a crane, the operator of the crane attempted to lay another cover near by and permitted it to strike the one on which the plaintiff was working, crushing the brick on which it rested and injuring the plaintiff’s foot; that there was no proof of any defect in the ways, works, machinery or plant or of any negligent act of superintendence, and that the crane operator was not under the supervision of any superintendent or foreman, but was a mere coemployee, the complaint should be dismissed.
    The doctrine of res ipsa loquitur does not apply under such circumstances.
    Appeal by the defendant, Lackawanna Steel Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 9th day of July, 1915, upon the verdict of a jury for $1,600, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.
    
      Evan Hollister [Rogers, Locke & Babcock, attorneys], for the appellant.
    
      W. H. Ticknor [Ticknor, Pierce & Pomeroy, attorneys], for the respondent.
   Per Curiam:

This appeal presents the question as to whether a case was made for submission to the jury on the ground of negligence alleged in the complaint and in view of the law of the case as charged by the court.

Plaintiff was an employee of defendant as a mason and brick - layer. Among his duties was that of relining with brick iron furnace covers. These covers were eight or nine feet long by six feet wide and about twenty inches in height and weighed from six to nine tons. They were used to cover the top of large furnaces when in blast. The brick lining of these covers frequently burned out and had to be replaced with new fire bricks. The top of the furnace was on the same level as the second floor of the mill, and the method employed was to lift the cover from the top of the furnace by means of an electrically operated crane propelled along a track on the second floor of the mill. The operator of the crane then laid the cover down bottom side up at some convenient place on the floor to be relined by plaintiff and one or two other bricklayers who worked with him. This floor was made of sheets of steel resting upon steel beams. In the process of relining these covers it was necessary to break off pieces of the bricks which were allowed to fall on the floor and remain there until cleared away. How often they were cleared away or by whom does not clearly appear.

The cover which plaintiff was engaged in relining at the time he was injured had been laid down upon the floor by the crane operator, with one end resting upon one or more pieces of brick. Whether this was done intentionally to facilitate placing a chain under the cover when it was ready to be raised or whether there was no such intention but the bricks had accumulated on the floor and. had not been removed to make a clear place to place the cover, does not appear. Plaintiff at the time of his injury was standing at the end of the cover which rested on the brick, engaged in his work of relining it. After he had worked ten or fifteen minutes the crane operator brought over another cover and attempted to lay it down on the floor near the cover on which plaintiff was working, but he permitted or caused it to swing against and strike the cover on which plaintiff was working in such a way as to move it toward plaintiff, crushing the brick on which its end rested and injuring plaintiff’s foot which projected partly under the end of the cover. Plaintiff had previously relined another cover nearby and had then been directed by his foreman to reline the cover on which he was injured.

The negligence alleged in the complaint is the placing of this cover upon a brick wholly inadequate to support it, rendering the place where plaintiff was to do his work unsafe. The ground of negligence left to the jury, as stated in the charge, is as follows: “It is the plaintiff’s claim that this cover was placed on the floor with one end of the same on a brick; * * * that while this cover was upon the' brick * * * he was directed to undertake to lay brick upon the same, and in so doing he did have his foot placed under the cover. It is his claim that he had no reason to believe that the conditions were such that he was in danger at that time; that if the condition had remained as it was when he first put his foot there, he was in a safe condition, but that the defendant operated its business in such a way that it allowed the crane to raise a cover and swing it around in such a way as to strike the cover upon which the plaintiff was at work; that moved the cover, and it being of such great weight, it crushed the brick and caused the cover to come down upon his foot, and that caused his injury.”

At the request of defendant’s counsel the court charged, in substance, that there could be no recovery if the jury find the accident occurred solely by reason of the carelessness of the crane operator causing' the cover that he was handling to strike the cover that the plaintiff had his toe under; also that there was no evidence of any negligent act of superintendence; also that if the jury found that the placing of this cover on this brick and the handling of the crane as they did while it was thus placed were, details of the work, then there could be no recovery.

Under the law of the case as thus laid down by the court, we think there was no question for submission to the jury. While the action was brought under the Employers’ Liability Act (Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14, as amd. by Laws of 1910, chap. 352), there was no proof of any defect in the ways, works, machinery or plant, or of any negligent act of superintendence to make that act applicable to the case. If it was negligence to lay down this cover with one end resting upon a brick, it was the negligence of a coemployee so far as appears. At least it does not appear that any foreman or superintendent was concerned in this act, nor does it appear that the weight of the cover would have crushed the brick, if it had not been struck and moved by the other cover.

It was the law of the case as charged by the court that the - crane operator was a coemployee with the plaintiff, and that the negligence of the crane operator would not render the defendant liable. It does not appear that the crane operator moved the cover which struck the cover on which plaintiff was working, under the supervision of any superintendent or foreman controlling his action, and, so far as appears, the moving and placing of these covers upon the floor and the relining of them by the plaintiff and his coemployees was a part of the detail of the work. The negligence proved was that of plaintiff’s fellow-servants.

It follows that on the evidence presented the trial court should have dismissed the complaint. (Edgar v. Brooklyn Heights R. R. Co., 146 App. Div. 541; Dailey v. Stoll, 211 N. Y. 74.)

Respondent urges that the recovery can be supported under the doctrine of the maxim res ipsa loquitur. We think this doctrine is not applicable.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred; Kruse, P. J., and Merrell, J., in result only, in a memorandum by Kruse, P. J.

Kruse, P. J. (concurring in result):

I concur in the result. While the evidence is not very satisfactory, I think it is sufficient to submit the question to the jury- as to whether the method of carrying forward the work was reasonably safe. (Pepe v. Utica Pipe Foundry Co., 132 App. Div. 458; Banchetti v. Gorsline & Swan Const. Co., 152 id. 275.)

The plaintiff had nothing to do with moving about these covers. His work was relining them after they had been placed for that purpose. He was set at work doing that by the foreman, and then, so far as appears, the foreman took no precaution to see that he was warned against dangers from the operation of the crane. Nor does it appear that any rules were made for operating the crane and giving warning or that other like precautions were taken to guard against accidents of this kind.

The difficulty in the case is, as I view it, that it was not submitted to the jury upon that theory and that the verdict rests upon an untenable ground.

I, therefore, vote for reversal.

Merrell, J., concurred.

Judgment and order reversed, and new trial granted, with costs to appellant to abide event.  