73 N.Y.S. 733 | N.Y. App. Div. | 1901
The relation of master and servant existed between the plaintiff and the defendants at the time the former received the injuries for which this action was brought.
The learned trial judge dismissed the complaint at the close of the plaintiff’s case, and the question is whether the evidence given tended to show that the accident was the result of some omission of duty oil the part of the defendants.
The defendants were engaged in the business of altering and repairing steamers and other vessels lying in the port of New York.
The circumstances which led up to the accident, according to the testimony of the plaintiff, were these : “ After dinner we came back and O’Rourke says they are going to put in coal here, going to work at it, and we have to hurry to get that band on to get in coal in the coal bunker so they can work it and we better start in and get it done ; I says all right. We started to get it on and O’Rourke got his end on, I was getting it over to get my end on, too, and it gave no warning, when twenty feet of it dropped right down, caught my foot and held me there. It did break; that is the ventilator itself. It broke about five feet below the grating and about twenty feet above my head.”
O’Rourke was sworn as a witness for the plaintiff and testified: “We had to put a strain on that ventilator when we were putting that band on to get it in place, to shove it to the place; a strain
We are of the opinion from these facts that the plaintiff failed to make out a case for the consideration of the jury. ., ■ ■ ;
The injury is not attributable to the defendants’ negligence in . omitting to furnish adequate and suitable tools and implements Or a safe and proper place in which to prosecute the work. The ventilator was not a tool, implement or appliance within the meaning of the rule, and the place where the work was done was not obviously or necessarily dangerous. The work could only be done in the fire-room of the ship. It was a safe place, and if made unsafe it was the fault of the persons employed and not of the defendants. The principle of a safe place does not apply when the prosecution of the work itself makes the place and creates its dangers. (O’Connell v. Clark, 22 App. Div. 466.) . ■
The engineer of the ship was in nowise the alter ego of the defendants as claimed by the plaintiff. He represented only the owners of the ship in pointing out or directing the work necessary to be done.
It does not appear that O’Rourke represented or stood in the place of the defendants. He was employed just as the plaintiff was; they were working together for a common purpose. Assuming, however, that he was delegated with the discharge of all the dutiés which in the conduct of the work rested upon the defendants to perform in respect to the plaintiff, he was still a servant in respect to such work as properly belongs to a servant to do. The liability ' of the master depends upon the character of the work in the performance of which the injury arises, without regard to the rank of the employee performing it. If the act is one which pertains only to the duty of the operative, the employee performing it is a mere servant, and the master, although liable to strangers, is not liable ■
The only imputation of fault relates to the method of the prosecution of the work itself and not to the matter of place or appliance. If the accident was caused by shoving the ventilator into position, it is clear that there is nothing in the case tó show that the defendants are liable. If it is to be attributed to the failure to inspect and repair the ventilator before removing or attempting to replace the band, it is equally clear that the defendants are not responsible. They had no opportunity to inspect it for the purpose of discovering any deficiency in its material or structure, and exercised no-personal supervision over the work. They had employed for the performance of the work a skilled and competent foreman and the plaintiff, a man of more than twenty years’ experience in making repairs in ships, who had put in hundreds of ventilators and understood their construction. While performance of the various details of the work was left to the intelligence and skill of their foreman, he was none the less a fellow-servant of the plaintiff.
As the court said in Cullen v. Norton (126 N. Y. 1), “ The accident resulted from a negligent act done in the very course of the work and by one of the fellow-workmen of the ' deceased. The negligent act was a part performance of the work itself, the risks of which the deceased had assumed. The master had provided a competent and experienced foreman, who had been in his employment a number of years, and he was not chargeable with the consequences of a place for work made dangerous only by the carelessness and neglect of a fellow-servant (Hussey v. Coger, 112 N. Y. 614-618), although that fellow-servant happened to be the foreman.”
Similar to this is the case of Kimmer v. Weber (151 N. Y. 417) where workmen voluntarily constructed according to their own judgment a temporary platform for which suitable material had been furnished by their master, and the foreman united with the workmen in determining that the structure was safe. The court held that they were co-servants and that their determination being at most an error of judgment with respect to a detail of the work it did not render the foreman guilty of negligence attributable to the master in permitting the workmen to use the platform.
The present case is within these decisions. It is the ordinary case of mismanagement or error of judgment on the part of a co-employée of superior grade in respect to a detail of the work in which he and the plaintiff acting tinder him were at the time engaged. ■
If these views are correct, there was no question tó be submitted to the jury, and the judgment should be affirmed, with costs.
Goodrich, P. J., Bartlett and Woodward, JJ.,, concurred; Hirschberg, J., not voting.
Judgment and order affirmed, with costs.