86 N.Y.S. 1070 | N.Y. App. Div. | 1904
This action is brought to recover damages for injuries claimed to have been received through the negligence of the defendant. The plaintiff was in the employ of the defendant as a helper to one Short, a foreman of the defendant employed as an oiler. It was the duty of these men to oil the wheels which carried the cable,, the motive power of the car, beneath the surface of the street, and' also to repair the same and to put in new wheels when required. In the performance of his duties the plaintiff was subject to the directions of Short, the foreman. In order to do the work it was necessary to go into an opening called a “ pot hole,” located between the rails and underneath the surface of the street. It was claimed upon the part of the plaintiff, and evidence was given in support of the claim, that the “pot hole ” was not large'enough to permit him to remain therein during the passage of a car; that he was required to place his head and body below the surface of the street during the performance of his work, in consequence of which he was not able to
We do not, however, rest our decision upon this ground, as we think error was committed in the submission of the case to the jury which necessarily requires a new trial. Among other things, the court charged: “ I have decided, however, to present this case to you upon the theory that, if certain facts are established to your satisfaction, the master could not delegate certain duties to Mr. Short in this case which I will later explain so that you may not misunderstand what I am aiming at. Any act of omission which was incumbent upon Mr. Short, upon a certain aspect of the case, would be one for which the defendant would be answerable. If it were not. for that fact, gentlemen, the plaintiff would not have a case.” The court then proceeded to charge that.if the “pothole” was not of sufficient size to enable the plaintiff to keep his entire body under the level of the sti'eet, a duty was devolved upon the defendant to take such precautions as would insure plaintiff a safe place to work, and that it was incumbent upon the defendant in order to make the place safe to have some one to warn the plaintiff of the approach of a car and warn away other vehicles. The court then stated: “ So that, you see, the crucial point of the case is, was the place where the plaintiff was working at the time such a place that he could not get his entire body within that opening underneath the level of the street ? ” The court then submitted the question as to whether the plaintiff was in such position as. to be cognizant himself of approaching danger, and if so, that he was bound to take heed of it and avoid it if possible, in order to relieve himself of contributory negligence. The court then charged upon the subject of the warning required, based upon the respective theories of the parties, and said, in that connection : “ I think it is proper to say to you that as the case is presented, I do not think the question of warnings has really much to do with this case.” The court then charged that when a person is engaged in a business which is dangerous and hazardous the law imposes upon him the assumption of
To these several quoted portions of the charge the defendant excepted and it requested the court to charge: “ If it was the duty' of the foreman Short to give warning • of the approach of the car, and if his failure to give such warning was the cause of the accident, then such failure on his part is the.negligence of a fellow servant of the plaintiff and’ not of an alter ego of the defendant, and your verdict in that event must be for the defendant.” The court refused so ,to charge and the defendant excepted. Upon the motion for a new trial the court held that Short was the alter ego of the defendant; that its duty extended not only to providing a competent person to stand guard and give warning as the circumstances required, but that the duty extended to-the performance of the act of warning, and, therefore, that the defendant could not relieve itself from liability by providing a competent person, but was likewise respónsible for the manner in which he performed his duties. Under the submission by the court, the evidence justified the jury in finding that the hole was too small for the plaintiff to remain in the same during the passage of a car, and finding this fact they were instructed that the duty of the master was to provide a s'afe place commensurate with the dangers to be encountered and that the obligation resting upon the master was not only to provide a safe place but to see that it continuously remained safe, even to the detail of giving the warning which the circumstances required. It is evi
The court below relied upon Hankins v. N. Y., L. E. & W. R. R. Co. (142 N. Y. 416). The neglect in that case was of a, train dispatcher in ordering the movements of two trains which resulted in their collision, whereby a servant was injured, and it was held that in the discharge of that particular duty it was the master who acted. The train dispatcher controlled the entire situation with respect to the movements of the trains, was acquainted with and controlled the schedule by which they moved. This was the particular business of the master and its performance could not be delegated. The act itself created the condition which made the place unsafe, and, under such ■ circumstances, the master may not shelter himself from responsibility behind the act of the servant. The distinction between that case and the present is pointed out in Savage v. Nassau Electric R. R. Co. (42 App. Div. 241; affd. on appeal, 168 N. Y. 680).
It follows that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
Van Brunt, P. J., Patterson, Ingraham and Laughlin, JJ., concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.