
    Fred Knauss, Respondent, v. The Webber Construction Company, Appellant.
    Second Department,
    March 28, 1913.
    Master and servant—negligence ■—injury to carpenter thrown from platform—breaking of board used as lever — failure of foreman to furnish reasonably safe tools — charge — act of fellow-servant.
    In an action by a carpenter employed by the defendant in the construction of temporary wooden forms into which concrete was to he poured to recover for personal injuries, the plaintiff claimed that one of the boards in the form bulged out to such an extent that it needed to be straightened; that he asked the defendant’s foreman if there was a crowbar or some appliance with which he could place the board in position; that the foreman replied that there was no crowbar on the job, and handed the plaintiff a hoard to use, and that while the plaintiff was standing on a platform and using the board as a lever or pry it broke and he fell to the ground. There was evidence of a large circular knot in the board in the place where it broke. The case was submitted to the jury under the' common-law rules, and the court charged that, if the defendant’s foreman failed in his duty of furnishing the plaintiff with a reasonably safe tool,, then he was guilty of negligence for which the defendant would be liable.
    Held, that the charge of the court was erroneous, and that the exception of the defendant thereto requires a reversal- of the judgment.
    The act of the defendant’s foreman in directing the plaintiff to use the board was nothing inore than a temporary expedient, which was resorted to for a special purpose to meet a particular emergency presented in prosecuting a detail of the work, and for this act of a fellow-servant, even if negligent, the master was not responsible.
    Appeal by the defendant, The Webber Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of' Kings on the 27th day of December, 1911, upon the verdict of a jury for $10,500, and also from two orders entered in said clerk’s office on the 28th and 29th days of December, 1911, respectively, denying the defendant’s motions for a new trial made upon the minutes.
    "Edward M. Grout [Charles B. La Voe and James I. Cuff with him on the brief], for the appellant.
    
      Don R. Almy, for the respondent.
   Stapleton, J.:

This is an appeal from a judgment entered upon a verdict rendered in favor of the plaintiff, and from an order denying a motion, made upon the minutes, to set aside the verdict and for a new trial.

The action was brought to recover damages, for personal injuries. The plaintiff was a servant and the defendant his master. The casualty occurred on November 24, 1909. The complaint pleaded négligence according to the principles of the common law. It also alleged compliance with article 14 of chapter 36 of the Laws of 1909, being the Labor Law (Consol. Laws, chap. 31).

The enterprise in which the defendant was engaged at the time was the erection of the approaches to a bridge across the Harlem river in the city of Hew York. A feature of the work was - the construction of temporary wooden forms into which steel columns were placed and concrete was poured, which forms were removed when the concrete had sufficiently set. The plaintiff was employed by the defendant as a carpenter on this branch of the work.

The plaintiff narrates the transaction substantially as fol- . lows: On the morning of the casualty he reported to one Dugan, a foreman over a gang of six or eight men, who told him to put the slabbing down on a partially completed form. The slabbing consisted of four planks, one and three-fourths inches by eight inches by ten feet, and was part of the construction or box for the concrete. He started to do this work. He discovered that one of the boards in the front panel of the form bulged out to such an extent that it should-be straightened. The panel was three feet in height. He, at the time, was . standing on a platform exterior to which there was an opening twenty-two feet in depth between it and an outer wall ten feet away. He tried to straighten the panel with his hand and right knee, but did not succeed. He thereupon went to Mr. Dugan and asked Dugan if he had a crowbar or something, or some appliance with which he could pull the slabbing and panel into position. Dugan replied, “No, there is no such thing on the job as a crowbar,” and Dugan picked up a board and said, “Use this.” The plaintiff took the board and used it. It was seven-eighths of an inch in thickness, five and a half inches in width, and from five and a half to six feet in length, “ sleeted ” over with concrete. There was a supply of lumber on the job. The plaintiff placed the board down back against the brace, and while standing on the platform or plank he put his knee against the panel and pulled on the board, using it as a lever or pry; and while pulling the board it snapped and broke and plaintiff fell from the platform or plank to the ground, twenty-two feet below. A witness for plaintiff said that there was a large circular knot, about three inches in diameter, in the board at the place where the break occurred. Another saw the sign of a knot in the broken plank.

The defendant’s version is quite at variance with that of - the plaintiff. Its version is that the plaintiff and his companion worker were handling a stringer on the hack side of a panel of the form; that each was holding his end up; that the companion was holding with his right hand on the top of the panel, and with his left hand was holding the plank; that plaintiff’s hand slipped and he tumbled from the plank upon 'which he was standing; that he had nothing in his hand except the hoard that he was holding for his companion to nail; that no material, tools, implements or board broke at the time the plaintiff fell; and that; Dugan was not at or near the place-where plaintiff and his companion were working on the morning of the accident.

There was evidence in the case that there were crowbars, furnished by the defendant, in the locker house, which was near where plaintiff was working. There was evidence in the case that Dugan gave no direction and indeed was not there; that he did no work of superintendence on that section of the work; that there" was no bulge; that there was no necessity for an implement.

■ The case was Submitted to the jury exclusively upon the theory that the liability of the defendant was to be determined by common-law riules. The plaintiff’s verdict, therefore, must be sustained, if at all, by a case predicated upon those principles, and can receive no support from any breach of obligations imposed by statute. (Curran v. Manhattan R. Co., 118 App. Div. 347; Glynn v. N. Y. C. & H. R. R. R. Co., 125 id. 186.)

The theory of submission was that the master failed in his duty.to furnish his servant with an adequate and safe appliance and such as is usual in the prosecution of the master’s business. The sole act of omission or commission that the court pointed out in its charge to the jury was stated in the following language : £ £ The negligence of Dugan, which might be attributed to the defendant, would be the failure of Dugan to keep up or perform the duty of the defendant of furnishing the plaintiff with a reasonably safe tool to do his work. ' If Dugan did that, that being the only act of negligence attributable to him, he was not negligent, and, consequently, the company was not negligent. If, however, he omitted his duty of furnishing the plaintiff with a reasonably safe tool for the operations properly within the line of the plaintiff’s- work, then he was negligent, and the negligence of the company would follow.”

To this declaration of the law an exception was taken by the defendant. It also excepted to the denial of its motion tb dismiss the complaint at the close of plaintiff’s case and at the close of the entire case. Plaintiff made no move to have any other question submitted.

The act of Dugan in directing the plaintiff to use the plank was not the act of the alter ego of the master; it was nothing more than a temporary expedient which was resorted to for a special purpose to meet a particular emergency presented in " prosecuting a detail of the work, and for this act of a coemployee, even jf negligent, the master was not 'responsible. (Flike v. Boston & Albany R. R. Co., 53 N. Y. 549; Crispin v. Babbitt, 81 id. 516; Marsh v. Chickering, 101 id. 396, 400; Kiffin v. Wendt, 39 App. Div. 229; Warszawski v. McWilliams, 64 id. 63; Rager v. D., L. & W. R. R. Co., Id. 134; Cogan v. Burnham, 175 Mass. 391, 393.)

The exception to the part of the charge quoted requires a reversal of the judgment and order and makes unnecessary the consideration of any other question.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Burr, Carr and Rich, JJ., concurred.

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