93 N.Y.S. 748 | N.Y. App. Div. | 1905
Lead Opinion
The plaintiff was an ironworker in the employ of the defendant. The accident which produced the injury complained of was caused by the breaking of a rope. The defendant was engaged in the construction of a building upon a lot running through the block from Seventy-fourth to Seventy-fifth street, near Avenue A, in the borough of Manhattan, city of New York. In the course of such
The men in charge of this work, including the plaintiff, were under'the direction of a foreman. When the buggy was placed in position astride the beams and before the actual-loading had begun, the foreman’s attention Was called to the condition of the rope used in tying down the tongue,' and.it was stated "that it was too light for the strain to which it was to be subjected, and was, therefore, unsafe. Thereupon the.foreman sent a workman for another rope, and he returned with the statementxthat “there wás.no lines to be got; * * - * there was no line in the shanty.” The foreman then directed the men to use the rope which they had. The plaintiff at this time had gone for a drink of water, and when he returned the buggy had been pushed over tlife beams, the tongue brought down, and the men were tying it with the rope. The foreinan directed the plaintiff to get hold of the'tongue and keep it around. , When- loaded, the beams balanced ■ under the axle of the buggy, and the. plaintiff’s position at the'tongue was for the purpose of directing the course over which the load would be moved. While he was in this position the rope which held down the tongue broke and the plaintiff was thrown into the air,' carne down, striking upon the back of his head and sustained severe injuries.
, • The evidence on the part-of the plaintiff tended to show that there Was rope in and about the building and the premises, yet it also, disclosed that "such rope was being used for various purposes by other workmen employed on the building, and that the only way in-which additional .or other rope could have been procured was by taking it away from some of -the other workmen who were at." the
At the close of the evidence, upon motion of the defendant, the court dismissed the complaint on the ground that the furnishing of the rope was a mere detail of the work; that the foreman was a fellow-servant of the plaintiff, and either negligently directed that the workmen use a rope which he knew was insufficient, or that, in the exercise of judgment, he erroneously determined that it was of sufficient strength for the nse to which it was devoted.
The claim was also made that the buggy was a mechanical contrivance within the provisions of section'18 of .the Labor Law (Laws of 1897, chap. 415), and that, therefore, the plaintiff was entitled to recover under the rule of law which the statute provides. Upon this subject the court held that the buggy was to be regarded as an implement, and did not fall within the terms of the statute, so that no liability could be predicated against the defendant under its provisions. We agree with the learned court below in the view which it took of the latter question.
We are not, however, able to agree with the conclusions reached by it respecting the first question. It is settled by a nearly unbroken line of authorities in this State “ that a master is bound to use all reasonable care, diligence and caution in providing for the safety of those in his employ, and furnishing for their use in his work safe, sound and suitable tools, implements, appliances and machinery in the prosecution thereof, and keeping the same in repair. This is the master’s-duty, and he cannot exempt himself from liability for its omission by delegating its performance to another, or having required work to be done, by omitting precautions and inquiries as to the time and manner of its performance.” (Benzing v. Steinway & Sons, 101 N. Y. 547.) The obligation to furnish necessary, safe and suitable appliances for the prosecution
Hor was the. defendant relieved- from its liability by reason of the action of the foreman whether he be considered as the alter ego of the master or merely a fellow-servant with the plaintiff. In either event the most that could be said in favor of the defendant is that the foreman either negligently or through an error of judgment directed the employees to- make use of the unsafe rope. But this was only a cause contributing to the accident and it' became united with the negligence of the- defendant in failing- to furnish a suitable appliance. The case is brought, therefore,. squarely within the rules announced in the foregoing, authorities,, and hence it was error to dismiss the plaintiff’s complaint.
q The judgment and order should, therefore, be reversed and a mew trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., arid O’Brien,-J., concurred ; Ingraham and McLaughlin, Jj., dissented. ’
Dissenting Opinion
. I am unable to concur in the opinion of Mr. Justice Hatch, because it is opposed to the rule laid down in Vogel v. American Bridge Co. (180 N. Y. 373). The principle there applied is the one to be applied here and necessitates an affirmance instead of a reversal of the judgment.
' In- that: case the defendant was engaged in erecting an iron or steel frame for a building. The supervision of the work, including the employment and. discharge of workmen, was committed to a foreman.. During the progress of the work it became -necessary to raise an iron or steel truss to an upright position. An effort was made to do this by a rope which, after passing around the .truss, ran to . the block and tackle of a derrick. The rope' which was . - used was first examined by some of the'men engaged in doing the work and by them rejected as not being strong enough, and thereupon some of them went to a house nearby for the purpose of get- . ting another. They were there met by the foreman, who inquired what they wanted, and on being informed, told them the rope they had was strong enough, and to go back -and use. that. They went back, this rope -was used, and in raising the truss.the rope broke and plaintiff was injured. It was held that the foreman was not the alter ego of the defendant and that the use of the rope was due either to his negligence pr "error of judgment, for' which defendant ' was not liable.
In the case now before us the defendant was also engaged in erecting an iron or steel frame for a building, and during the progress of the work it became necessary to move some iron or steel
Ingraham, J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant, to abide event.