126 N.Y. 105 | NY | 1891
The evidence in this case shows that the process of repairing the exterior hull of a vessel placed in a dry-dock for that purpose requires the skill and labor of at least two classes of workmen, known in the business as "lumpers" and "caulkers." The duty of the former is said to be to erect the staging around the vessel, grave the vessel and put on the felting if necessary and run the metal; and when this work is done that of the caulkers follows. The lumpers consist of eight or more men known as the "lump gang," one of whom acts as their foreman. There were two of these "gangs" in Brooklyn, and one or the other of them was always employed in doing that kind of work. The foreman or "boss" of the lump gang at the scene of the accident was Kennovan. He testifies that he made a contract with the defendants to do the lumper's work upon the vessel, which included the erection of the staging, for four cents a sheet of the metal run on. He *108 said "it is the understanding with us men that we made a contract with the defendants to do this lumping work you have spoken of. After we had performed that work we entered upon the duties of a caulker." He added that for those duties he was paid caulkers' wages, by the day. His contract as a "lumper" he further described thus: "My contract with Townsend and Edgett was to erect the scaffold and to grave the vessel, put on the felt and run the metal. That included the whole thing, and I received for that four cents for every sheet that went on the ship. That was for the whole gang, as I contracted for the whole gang. That is my usual custom. In this particular case I agreed to put up a good scaffold." Under this agreement, which is in no respect disputed, it is clear that Kennovan and his associates, while performing their contract, were independent of the control of the defendants and not subject to their orders. Kennovan could hire or discharge his men, dictate who should work on the job and who should not, and assign to each his place and specific duties. The defendants could do neither. Their rights were under the contract which they had made, and that committed the whole lumpers' work to Kennovan and his associates, who, while performing their contract, could employ or discharge whom they pleased, and subject to no orders or directions of the defendants.
These lumpers erected the staging. A single plank was defective and broke with the weight of the men upon it, one of whom, not belonging to the lump gang, was fatally injured, and for his death this action has been brought.
I think, upon the evidence given, that the lumpers who erected the staging, while employed by the defendants, were not, in a legal sense, their servants. One may be employed without being a servant, and have an employer who is, nevertheless, not the master. (King v. N.Y. Central H.R.R.R. Co.,
The case, therefore, is governed by the doctrine of Devlin v.Smith (
It is true that the plank for the staging, under the customary rule, were to be and were furnished by the defendants, but the *110 evidence shows that an abundant supply of sound and suitable material was so furnished, and that the particular plank which broke had been examined and condemned and marked as unsafe, and that the sole negligence which occasioned the injury was a careless selection of that plank by the lumpers, for which the defendants were not responsible.
No liability, therefore, was established against them.
But even on the theory adopted by the trial court, that the lumpers were servants of the defendants and not independent contractors, the case was sent to the jury on a wrong principle. The theory adopted was that the defendants owed to the caulkers the duty of providing for them a reasonably safe place in which to do their work; that whoever was chosen by the master to perform that duty became his agent, with whose negligence he was chargeable; that the lumpers were such agents, and that they having been negligent in putting an unsound plank into the staging, the case stood as if the master had done it himself personally, and so became responsible for the consequent injury. It was a mistake to assume as the duty violated that of providing a safe place for the work of the servants. The staging was not, in the sense of the rule, the place in which the work was to be done, but an appliance or instrumentality by means of or through the aid of which the caulkers were to do their work. The distinction is sometimes very important, for a place, in its broad sense, is never safe in which an accident happens, and an accident always happens in some place, and so the master might almost become an insurer. Properly enough, an existing mine, or a railroad track crossing a cattle-guard, or the rooms in a factory, have been deemed "places" for work which the master was bound to make safe by the exercise of reasonable care, but a platform upon which the servant was directed to stand, we have treated, not as a place, but as an instrument or appliance of his work (Benzing v. Steinway,
Assuming then that the lumpers were servants of the defendants, acting under the direction and orders of their foreman, they were also the fellow servants of the caulkers. Both were working at the same time under a common master, upon the same vessel and engaged in the same general employment. That to some extent their trades were different and one might not be skilled in the work of the other is immaterial where all were working on the hull of the vessel, for one general purpose, to accomplish one common result, and under one common control. (Svenson v. Atlantic M. St.Co.,
The trial court, therefore, erred in the theory upon which the case was sent to the jury, even if the lumpers were not independent contractors. The duty violated, if any, related not to the place of work, but to an appliance or instrumentality used; the lumpers and caulkers were fellow servants, and the negligence of the former existing and continuing when the decedent was employed was that of his fellow servants, even though in some sense it had an earlier origin. The exceptions taken, cover the errors suggested and bring out clearly the fact *113 that no question of personal negligence on the part of the master was submitted to the jury, but only one of imputed negligence for which he was declared responsible.
The judgment should be reversed and a new trial granted, costs to abide the event.
All concur, except RUGER, Ch. J., ANDREWS and Q'BRIEN, JJ., dissenting.
Judgment reversed.