126 N.Y. 1 | NY | 1891
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *4 Assuming Doran to have been negligent, is the evidence in the case of such a nature as to show that the defendant was responsible for it, or was the negligence that of a fellow servant of the intestate? I think it was the latter. A master is bound to furnish reasonably safe and suitable implements for the use of the servant, and a reasonably safe place of employment, considering the nature of the employment itself. There is very little room for disagreement as to the principles of law in this class of cases, but the difficulty lies in their application to the facts of each special case.
Did the defendant discharge this duty of furnishing in the first instance a reasonably safe place for the servant to do his work? The place was a cement quarry, and the work had *6 proceeded so far that the business had to be conducted by blasting. To blast at all is to encounter some danger, and hence, in this case, all the danger incident to the working of the quarry under conditions requiring frequent blasts, the workman took the risk of when he accepted employment in the quarry. The danger of accident from the negligence of a fellow workman is part of the risk assumed.
The master was liable for the act of Doran in placing the deceased at work where he did, provided such act was of a character which the master was required to perform as master. This is the principle decided in Crispin v. Babbitt (
The quarry was the place where the work was to go on, and the master was bound to make it a reasonably safe place for such work, considering its character and the necessarily dangerous nature of the work itself. For the manner in which the persons employed in the quarry should themselves perform their work, the master was not liable. It is not claimed that the master did not furnish a proper place to work in the first instance; that is, when the deceased was employed, the quarry was as safe as any quarry is where frequent blasts are being fired off.
But the manner of the performance of each of the various details of the work by which, as a whole, it was to be conducted, rested necessarily upon the intelligence and care and fidelity of the servants to whom these duties were intrusted. It can't be that every time a blast was exploded and the men came back, the manner of their distribution for work was a duty of the master, and that the order of a foreman, mistakenly or negligently given, must be regarded as the order of the master in filling a duty to furnish a safe place to work in. It is, as it seems to me, a detail of the working or management of the business, the risks attending which have been assumed by the party taking employment. *7
The case of Pantzar v. Tilly Foster Iron Mining Co. (
In this case it is the ordinary one of choosing a method, a time and a place for continuing the work in the quarry, and this involved questions of judgment and discretion committed in this instance it would seem to Doran. He, it may be conceded, mismanaged or misjudged the matter, and after placing the deceased at work, negligently or improperly placed others at work too near the hole in which the powder had not exploded, and the consequence was this most unfortunate accident. 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,
The case of Tendrup v. The Stephenson Co. (Limited), *8
decided in this court in
The case of Kranz v. Long Island Railway Co. (
In McGovern v. Railroad (
The case of Hogan v. Smith (
The defendant had been held liable below because of his alleged failure to furnish as master a reasonably safe place for the servants to do their work. We held that the place which the master furnished was the ship itself, constructed in the usual *10
way, which became unsafe, not by reason of any careless or negligent plan or manner of construction, but solely from the way in which the longshoremen did their work. The injury, it was said, happened not from any inadequate supply of boards to build the "stool," but from the negligent manner in which the workmen used them, and we reversed the judgment against the defendant. So in the case at bar. The master furnished the mine as a place for labor, and it was solely on account of the manner in which the foreman, a fellow servant, performed the work or directed it that the accident happened, and happened in the course of the performance of the very kind and character of work which the plaintiff's intestate took the risk of by accepting employment. I think this case comes within the clear principle of the Crispinand Babbitt case (supra), which remains in full vigor and life in this court. The same principle has been lately reiterated inLoughlin v. State of New York (
The judgment should be reversed and a new trial granted, costs to abide event.
All concur, except RUGER, Ch. J., and O'BRIEN, J., dissenting.
Judgment reversed.