Opinion
July Term, 1902.
James Devine, for the appellant.
O.M. Reilly, for the respondent.
The facts, as the plaintiff claims they exist and as we must assume were found by the jury, are as follows:
The defendant is a domestic corporation, and at the time in question was engaged in the manufacture and sale of firearms at the village of Fulton, N.Y. It had in its employ a Mr. Frank Stafford, who was foreman of one of its shops, called the pickling room, in which about sixty men were employed, and was charged with the duty of directing what particular work should be done in that room and as to the manner of doing it.
On the morning of the 26th day of November, 1900, at about seven-fifteen A.M., the plaintiff, who had been in the employ of the defendant for about twelve years, engaged principally in running a punch press and working in the pickling room, but also did general work, whatever he was requested to do by the foreman, and who was entirely familiar with the shop and its surroundings, and had helped to move all the machines, was directed by the foreman, in connection with two other employees, to move a bedplate of iron about five feet long and eighteen inches wide, weighing about 500 pounds, which was lying upon a bench about two feet from the floor. The plaintiff and his associates found the bedplate too heavy to move conveniently and so informed the foreman. The foreman thereupon picked up an old broom handle, placed it under the bedplate, directed plaintiff's associates to take hold of it, one at each end, and the plaintiff to take hold of the end of the bedplate behind them and thus carry it. They did as directed, and had proceeded but a short distance when the broom handle broke, the bedplate fell to the floor, striking the plaintiff's leg and seriously injuring him.
There is no suggestion that the foreman was not competent to perform his duties as such, that the place in which the accident occurred was unsafe or that the defendant did not furnish ample and suitable material and appliances for moving the bedplate in question. In fact it appears that there were plenty of sticks about the shop with which the plate could have been carried safely. The one selected by the foreman was not suitable, and, because of that fact, the accident resulted. The work being done was of the simplest character; it was attended with no hidden danger, and the plaintiff was quite as well qualified to judge of the feasibility of the method adopted to carry the plate and as to whether or not the stick used was suitable for that purpose, if he had examined it, as was the foreman.
Under these circumstances we think it clear that the defendant was not guilty of negligence, and that the negligence, if any, which caused the accident was the negligence of a co-employee, for which the defendant is not liable. The broom handle was not furnished by the defendant for the purpose of moving the bedplate in question or for use in connection with work of that character, and the fact that it was improperly selected and used for that purpose by the foreman can in no manner create a liability as against the defendant. There were materials and means at hand to have enabled the co-employees to move the bedplate with perfect safety. The fact that they did not avail themselves of them, but used unsuitable material instead, which caused injury to one of their number, was their own fault, for which the defendant is not liable.
The precise question involved was decided by the General Term, fifth department, in the case of Mahoney v. Vacuum Oil Co. (76 Hun, 579). In that case the plaintiff, with other employees of the defendant, was engaged in lowering a heavy tank through a hole made for that purpose in an upper floor of defendant's building. In order to facilitate the work the foreman placed a plank over the hole and directed the plaintiff and his associates to go upon it in performing their work. The plank broke because of its unsound and defective condition, and the plaintiff fell and sustained serious injuries. It appeared that plank suitable for the work had been furnished by the defendant. It was held that the plaintiff could not recover. Judge BRADLEY, in writing the opinion of the court, said: "In such a case it would seem that the act of making use of the appliances for such purpose is within the details of the work of the co-employee rather than of the master or his representative. ( Hogan v. Smith, 125 N.Y. 774; Cregan v. Marston, 126 id. 568.) The fact that the employee who placed the plank over the hole in the floor was foreman in the work has no particular significance upon this question. Whether an act or omission having relation to the service of the employees is that with which the master is chargeable is dependent upon the nature of the act, and not upon the grade in the service of the person whose act or default may come in question between the master and an employee. The relation of the foreman to the other workmen was that of co-employee, except as to such acts performed by him as were embraced in the duties of the defendant. ( Loughlin v. State of New York, 105 N.Y. 159; Cullen v. Norton, 126 id. 1.)"
After calling attention to the leading cases decided by the Court of Appeals bearing upon this question, the learned judge concludes: "If these views are correct it follows that to whatever negligence the injury to the plaintiff may have been attributable, it was that of the co-employees or some one or more of them, and was within the hazards assumed by him in the service."
We think the decision in the Mahoney case, which is fully sustained by many decisions of the Court of Appeals to which attention is called in the opinion of Judge BRADLEY, must be regarded as decisive of the case at bar.
It follows that the judgment and order appealed from must be reversed and a new trial granted, with costs to the appellant to abide event.
ADAMS, P.J., WILLIAMS, SPRING and HISCOCK, JJ., concurred.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event, upon questions of law only, the facts having been examined and no error found therein.