After nonsuiting the plaintiff the learned trial justice entertained a motion for a new trial on his minutes and on- granting the motion filed a memorandum stating that he was of opinion that there was a question of fact which should have been submitted to the jury, but he does not state what the question is.
This is an action by an employee against his employer to recover damages for personal injuries caused by the negligence of the defendant, and it is based on the common law.. The defendant was engaged in constructing a new theater at the intersection of Oayler street and Manhattan avenue in the borough of Brooklyn. The plaintiff was a structural ironworker. He first entered the employ of the defendant on the 25th day of March, 1908, and he worked at this theater a few hours on that day. He resumed work there the next morning, and, after working a few hours, while in the act of descending from the gallery to the main floorj he was struck by an iron girder which was being lowered to the ground. The men engaged on this work were. all in the employ of the defendant. They consisted of a foreman, who was absent at the time of the accident, one Hansen, whose position is designated as “ pusher,” and who had charge in the absence of the foreman, and an engineer who had charge of the operation of a stationary engine, used in hoisting and moving material,- and three ironworkers, including the plaintiff. The negligence charged in the complaint is (1) neglect to furnish a safe place, (2) neglect to furnish safe tools and appliances, (3) neglect to furnish' competent and sufficient employees, and (4) neglect to make proper rules for the conduct of the work.
There was no question of fact for submission to the jury with respect to whether or not the employer had performed its duty of furnishing a safe place for its employees, to work in performing their duties. ' The. place was rendered unsafe by the work and by the manner in which it was done, and, therefore, the rule with respect to a safe place has no application. (Citrone v. O'Rourke
There is no evidence that the tools and appliances furnished by the defendant were unsafe, or that any defect in any of the tools or appliances contributed to the accident. - .
There is no evidence that any of the employees were incompetent in the sense in which that term is used with reference to- the duty devolving on' the' master to employ competent fellow-servants. There is evidence indicating that the accident was caused by the failure of the engineer to properly operate the engine, or to apply the brake to' the drum while lowering the -girder, and he' was discharged for-this neglect- of duty ; but there is no evidence of prior acts of incompetency on his part which were known or -should have been known by the defendant. There is evidence that he let the brake slip on the drum on other occasions, -bnt.it does not appear who, if anybody, became aware of it. The learned counsel for the respondent, in his points, ■' charges the defendant with negligence with respect to the method employed on the job of signaling the engineer, and although it is not clear that this falls within any of the charges of negligence set forth in the complaint, it appeal's to have been litigated on -the trial, and we will assume that it is within the charge of a failure to furnish sufficient fellow-servants or to adopt proper rules. The system of signaling the engineer in use on the worlv was known as signaling by hand. ■ It is claimed that in the circumstances this was inadequate and unsafe, and that the engineer should have been signaled by .what is known as the bell system-. The iron Work on the first story and on the balcony ¡had been- completed and part of the iron work on the gallery had been performed. There was a large boom derrick with a mast and swinging boom and tackle of the usual pattern. The base of the mast of the derrick rested on the main floor ánd a little to the right of the center of the theater and about midway between the front of the balcony and the stage. ' A dummy double cylinder steam hoisting engine of the ordinary type used in operating the derrick was placed under the balcony about thirty feet from the mast of the «derrick. The engine had a drum or cylinder to which a cable was attached’ to control the boom of the derrick by raising or lowering it; as circumstances might require, and another drum or cylinder with a cable
It is claimed that it was improper to use the hand signaling system when the engineer could not see the load. The evidence is uncontroverted that the engineer could not see the load on account of the balcony and a cover oyer the engine. The engineer at first -testified that if the bell system of signaling had been in use he could have kept his eyes on the drum to which he ivas applying the brake and thus could, on discovering that the brake was slipping, have applied moré power quickly before the load got a start beyond control. On this theory it was quite immaterial whether or not the load was in sight of the engineer, for he could not have seen it while looking at the drum of the engine. It is manifest also that there is no force .in the contention that one or the other system should be used according to whether or not the load is in sight of the engineer, for under neither system is the engineer permitted to operate the engine on his own view, but he is required to follow the signals whether they are given by hand-or by a bell or by a whistle.
On the argument it -was contended, although the points contain no such claim, that the defendant should have adopted a rule forbidding the lowering or hoisting of material while men were going up or down the derrick. We are of opinion that it is without merit. The defendant did not require the ironworkers to go up or down the derrick, or to be under the load while it was being hoisted or lowered. ■ There were, as already stated, ladders which might have been Used by -the men in going up and down. There is nothing to show that it was necessary to lower the load in such manner as to bring it over the derrick down which plaintiff was descending. For aught that appears this is the only occasion on which material .was suspended or lowered over employees and very likely it was an unusual if not an emergent situation caused by the mistake in hoisting the wrong girder. It may well be that on all other occasions the men climbed the derrick used as a ladder before the material was hoisted and ordinarily they would only descend after they liad securely attached the load in its place in the- new structure. A master is not obliged to make rules that will protect his employees against the negligence of fellow-workmen-in every situation that may arise. The foreman, pusher, engineer and iron-workers in the -performance of their respective duties during the progress of the Work, other than the inspection and repair of machinery and appliances, were, at least, at common law on which
This is not a case where there was fixed, regular work at a particular place required to be performed in a, given way and to be continued -for some time which might have been regulated or rendered more safe by a rule, or a case where a, rule was necessary to insure knowledge of a situation on the part of other employees from whom danger was to be apprehended as in McCoy v. N. Y. C. & H. R. R. R. Co. (185 N. Y. 276) and Van Alstine v. Standard Light, Heat & Power Co. (128 App. Div. 58) and kindred authorities.
We are of opinion, therefore, that there was no question for the jury, and that the order should be reversed, with costs, and the motion for a new trial denied, with ten dollars costs.
Ingraham P. J., McLaughlin, Miller and. Dowling, «LL, concurred.
Order reversed, with costs, and motion denied, with ten dollars costs.