36 A.D. 355 | N.Y. App. Div. | 1899
The plaintiff in this action is a carpenter, and was employed by the defendant in the rebuilding of car stables at Flatbush and Vernon avenues," on the 30th day of September, 1896. He was under the immediate direction of Richard Hall, who was also in the employ of the defendant, and was at work upon a ladder in front of the car stables,: the ladder standing near one of the tracks leading out of the stables. At the same time a young man by the name of Freeman was •engaged in cleaning out the debris which had accumulated while the-rebuilding was going on, and for the purpose of removing the material he was given a horse attached to a two-wheel cart, and this cart, as often as loaded, was driven out of the stables and dumped. When the plaintiff went upon the ladder he was told by Hall that he would
The rule is that “ If the act is one pertaining to the duty which the master owes to his servants, he is responsible to them for the manner of the performance of it. If it is one which pertains only to the duty of an operative, the employee performing it is a mere servant, and the master, although liable to strangers, is not liable t;> ft fellow-servant for the improper performance of it.” (Slater v. Jewett, 85 N. Y. 61.) The duty of the master in the premises was to furnish the employee a reasonably safe place in which to perform his work, to supply him proper tools and implements, and to afford him competent co-laborers. It is not contended that the place in which the plaintiff was put to work was more dangerous than other places upon a ladder of equal height from the ground, except tha t it was necessary for the cars and cart to pass in and out, necessitaling at times the removal of the ladder ; nor is there, any claim pu fc forward that the defendant had not supplied competent fellow-serv - ants. In other words, it does not appear from the pleadings or tha evidence that the plaintiff was exposed to any dangers which- wens not known and obvious. If the defendant had in these respects discharged the duty it owed to the plaintiff, any negligence eitliev on the part of Hall or Freeman in carrying out the details of thfii work, was the negligence of fellow-servants and not of the defend.-, ants, who could not, in law, be charged with responsibility. “ If the co-servant, whose act caused the injury,” say the court in the case of Loughin v. State of New York (105 N. Y. 159, 163), “ was at the time representing the master in doing the master’s duty, the master is liable; if, on the other hand, he was simply performing the work of a servant, in his character as a servant or employe merely, the master is not liable.” Hall, in promising to remain at the foot of the ladder, was not representing the master; he was the competent fellow-servant whom it was the duty of the master to furnish, and he was, at the time, doing the work of a servant or employe, and was not representing the master. But Hall’s act did not caxise the injury ; that was the result of the negligence of Freeman, who was in charge of the horse; and, as to him, there is no suggestion that he was representing the master.
. This case comes clearly within the rule laid down by the court in
The judgment appealed from should be affirmed.
Judgment unanimously affirmed, with costs.