Lead Opinion
The accident which is the subject of this action occurred on the 17th day of March, 1903, at the “ roundhouse ” of the defendant in the village of East Syracuse, N. Y. The deceased at the time was in defendant’s employ and had been continuously for more than twenty years. He was an experienced' boilermaker, was then engaged in that capacity, and was entirely familiar with the methods adopted by the defendant of doing such work. One Peters was superintendent and had general supervision of all work done at the roundhouse and of the men there employed ; had authority to hire or discharge in his discretion. There were several branches or distinct classes of work being carried on, each of which was under the immediate supervision of a foreman or inspector, and. the men
The question is whether upon this state of facts the defendant is liable to plaintiff for the negligence of the foreman, Morris. We may assume that at common law it would not thus be liable, but we think, under the Employers’ Liability Act, upon the evidence, it was a question of fact for the jury whether or not such negligence was attributable to the defendant, depending only upon the question as to whether or not Morris at the time was acting as supérintendent of the' defendant or, at the time was acting in that , capacity. The act provides in substance, so far as it is applicable to the question now being considered, that where personal injury is caused to an employee who is himself in the exercise of due care and diligence at the time “ by reason of the negligence of any person in the service of the employer entrusted with and exercising superintendence, whose sole or principal duty is that of superintendence, or in the absence of such superintendent, of any person acting as superintendent with the authority or, consent of such employer,”. the employee shall have “ the same right of compensation and remedies against the employer as if the employee had not been an employee of nor in the service of the employer nor engaged in his work.” We think the evidence in this case very conclusively establishes that Morris, although designated as foreman or inspector, was intrusted with and was exercising superintendence. It shows that at the time in question the general superintendent, Peters, was
It is- urged that the evidence fails to show that plaintiff’s intestate was free from contributory negligence, because, it is alleged, he could" have known whether or not all .the bolts-had been removed, and, therefore, whether it was safe, for him to go in front of the
Upon the question of assumption of risk by the deceased, we think the jury were amply justified in finding adversely to the defendant. We do not hold—it is not necessary to hold in this case — that cases may not arise where the evidence so conclusively establishes assumption of risk that it may be so decided as matter of law. That proposition was in no manner involved in Hoehn y. Lautz (94 App. Div. 14), decided by this court.- In that case it was stated in the opinion (p. 18) that the intestate was himself responsible for allowing an excessive amount of steam to go into the drum, which was the cause of the accident. In this case, if we are right in our conclusion that the accident occurred through the negligence of the foreman, Norris, and that his negligence was the negligence of the defendant, the deceased did not assume such risk. At common law, if the danger was caused by the negligence of the master and was unknown to the servant injured thereby and'could not have been ascertained by the exercise of ordinary care and prudence, there was no assumption of risk. We think the case is entirely barren of evidence tending to show that the deceased assumed the risk of the accident which befell him, unless we should
We conclude that upon a fair consideration of the evidence in this case, the jury was entitled to find as it did under v-he very fair and impartial charge of the court, to which no exception was taken by the defendant, that the defendant was guilty of negligence which caused the injury; that the plaintiff’s intestate was free from contributory negligence and that he did not assume the risk. No -question is made by respondent’s counsel upon this appeal that the verdict is excessive.
We conclude that the judgment entered upon the-nonsuit should be reversed;, with costs, and that judgment should be directed in favor of the plaintiff upon the verdict of the jury, with costs.
All concurred, except Nash, J., who dissented in an opinion, in which Williams, J., concurred.
Dissenting Opinion
I do not think that it can be properly said that the position of Norris, the foreman in charge of the work in which Faith was employed, was that of superintendent, or that he was at the time that Faith received the injury which resulted in his death, within the meaning of the Employers’ Liability Act, a person exercising superintendence, or whose sole or principal duty was that of' superintendence. He was foreman of boilermakers under direction of Peters, the general foreman, from whom Norris received his orders and distributed the. work among the men under him. Norris worked with the boilermakers, looked .after the work and inspected boilers. His labor of inspecting boilers was that when the fire was out of the boiler, out of the firebox, and it was cold, he examined the stay-bolts and flues. “ He gets into the boiler and looks it over and determines whether it needed repairs or not. In case he decided that some repairs were needed on the boiler, he gave instructions to the men to make the repairs.” He inspected all the boilers that came in. There were about fifty or fifty-five boilers for him to look after every day, to give them external inspection. He inspected on the average fifteen or twenty on the inside daily. He set the boiler
There is no question as to the character of the work in which Horris was engaged. He says: “ My position at that time was foreman of boilermakers. * * * I inspected all locomotives that came in from the east and west on both' divisions and looked after giving out the work and seeing that it was done properly. I did not do any of the repairing myself at that time. I did all the inspecting myself. In inspecting' I used a hammer. It was my business in the ordinary course of events down there' to get inside of those boilers with a hammer to see how they looked, and whether they were soiind or in order 'or not, and I inspected them on the outside. I did not hammer them any on the outside to do that. In the course of inspection I also looked at the staybolts and different parts. That work in doing that inspection, as I have described, was the manual labor that I did. * . * * If I found anything the matter with a boiler I gave the work to some boilermaker under my charge. * * * I couldn’t stand right over one job when I had-different .men to look after. I was around from one to another and inspecting the engines as they came in. The engines had to be inspected immediately on their arrival. I was not there when they commenced working on that engine on which Mr. Faith was hurt. The engine had a bursted flue and that necessitated the removal of the front. I told these men to remove it, Elmer 'Depán, John Faith and Mike Kelly. I say I was not present when they began their, work. When I first saw it, when I got there, Depan was taking off the nuts. He had got two or three off when I went by the front first. I went down to the dump pit then to inspect an engine. That was about 300 feet from the place where this engine stood, I should judge. I-couldn’t say -just how long I was down there, At that time, when I went by this
Clearly within the case of Vogel v. American Bridge Co. (180 N. Y. 373) Korns was not the alter ego of- the. defendant, but on the contrary-, a fellow-workman with Faith, the part taken by the latter being" a mere detail of the work in which they were both employed.
The judgment should be affirmed.
Williams, J., concurred.
Judgment "entered upon the nonsuit reversed, with costs to the appellant, and judgment ordered in favor of the plaintiff upoti the . verdict, with costs.