Opinion
July 23, 1907.
Herbert C. Smyth [ Frederic C. Scofield and P. Henry Delehanty with him on the brief], for the appellant.
Alfred A. Wheat [ Theodore H. Lord with him on the brief], for the respondent.
In Hope v. Scranton Lehigh Coal Co. ( 120 App. Div. 595) the cases were reviewed, and we reached the conclusion that the Employers Liability Act (Laws of 1902, chap. 600) must be construed to create a liability against the employer for the acts of a superintendent only when he is engaged in an act of superintending. Without the aid of the statute the plaintiff in this case must fail because of the negligence of the coservant, Slackbower. The question then is, was Slackbower superintendent, and if so, was his negligence, supposing it was the proximate cause of the injury, committed while he was in the act of superintending? It does not appear that he devised the method of trimming the tree or that he gave any instructions or orders in the doing of that work. He merely held the rope attached to the smaller limb, as two other workmen held the rope attached to the larger. The directions that were given were not by him but rather to him, for the plaintiff called out to him not to hold the rope taut but to "let the rope go" in order that the limb might fall to the ground. The rule suggested in the Hope case as a test of acts of superintendence is that unless the act itself is one of direction or of oversight, tending to control others and to vary their situation or action because of his direction, it cannot fairly be said to be one in the doing of which the person intrusted with superintendence is in the exercise of superintendence. Slackbower's superintendence consisted in designating the tree to be trimmed, and from aught that appears this is all he did of direction or oversight.
Flynn v. Boston Electric Light Co. ( 171 Mass. 395) is in many respects similar to the case at bar. There the men were stringing an electric light wire through a tree and Grant, the foreman, at a certain time in the work ordered the wire to be pulled, and himself helped in the pulling; the wire caught, and plaintiff shouted to stop, but he was hurt. It was held that Grant was but a conservant in this work of pulling, and was not engaged in any act of superintendence, and the plaintiff's exception to the direction of a verdict for the defendant was overruled.
The judgment appealed from must be affirmed, with costs.
WOODWARD, JENKS and MILLER, JJ., concurred; HIRSCHBERG, P.J., dissented.
Judgment affirmed on reargument, with costs.