180 N.Y. 373 | NY | 1905
Lead Opinion
The plaintiff has recovered a verdict against the defendant in an action to recover damages for a personal injury, which, he alleges, was occasioned through the negligence of the defendant. The justices of the Appellate Division, in the second department, were divided in opinion; but the judgment upon the verdict was sustained by the majority and, upon this appeal by the defendant, the question is open to us whether the evidence was sufficient to make out a cause of action. In my opinion, it was not and the judgment should be reversed.
It appears that the defendant, a corporation, had contracted to erect an iron, or steel, frame for a roof upon a factory building and the plaintiff was one of a gang of men employed by the defendant upon the contract work. The foreman, or "boss of the job," as he is called, was one McMahon, a competent man, and the workmen were under his directions. His authority comprehended the management of the work and the employment, or discharge, of the workmen on the job. At the time the accident occurred, the men were engaged in raising one of the trusses to an upright position; in order thereafter to raise it into its place in the roof. This was effected by a rope attached to the peak of the truss, which ran to the block and tackle of a pole, or derrick. A rope, which lay upon the ground, being examined by some of the men, was rejected by them, as not being strong enough. They proceeded to the tool house to get another rope and, having been asked by the foreman their purpose, were told by him to go back and use the one they had; saying "It is strong enough." They did so and made the rope fast. Before the truss was raised into position, the rope broke and the truss fell upon the plaintiff and broke his leg. *376
Motions to dismiss the complaint upon the plaintiff's case and at the close of the evidence, upon the ground that no negligence had been proved and that, if any there was, it was that of a fellow-servant in relation to a detail of the work, were denied. The trial judge submitted the case to the jury, upon the theory that they might find the corporation responsible for the occurrence, if, determining that the foreman had the power to do so, he had refused to the men other rope, though there in abundance, and had compelled them to use a rope which, in the exercise of ordinary care and prudence, should have been rejected. At the Appellate Division, the majority of the court, in an opinion holding that no error had been committed by the trial judge, rested the determination upon the basis that the evidence was sufficient to constitute the foreman, McMahon, thealter ego of the defendant and that his negligence, in not furnishing a reasonably suitable appliance for the use of the plaintiff, cast upon his principal the responsibility for the accident.
I am not able to concur in that view of this case and I am quite unable to perceive the respect, in which the defendant failed in the legal duty to its servants of furnishing proper and suitable appliances for the performance of the work upon which they were engaged and a competent foreman. I am unable to perceive how the foreman, whether it was his neglect, or whether it was an error in judgment, in failing to make use of another and better rope from the store which the defendant had provided, could cast the liability for the accident upon his employer. Under the rule, as settled in this court in a number of cases, more or less similar to this in the cardinal facts, the servant, in the work upon which the master employs him, assumes as part of the ordinary risks attendant upon, or implied from the nature of, the work, such as arise from the possible negligence of competent fellow-servants. (Quigley v. Levering,
In Cregan v. Marston, (
In all the cases, where the question of the master's liability in this form has arisen, it is made to depend upon whether the act omitted, or neglectfully performed, by the alter ego was one which might be regarded as within the personal duty of the master, or whether it was some act in the line of a mere servant's duty. If, in the exercise of judgment by the master's *379
representative, he omits to do something, which has been foreseen and provided against by the master, the latter should not be regarded as chargeable with a responsibility for the result. Other cases in this court illustrate the application of this rule of liability; among which I may refer to Webber v. Piper,
(
It seems to me very clear, upon authority, as upon principle, *380 that, in this case, it was within the line of a servant's duty to get a suitable rope for the purpose of the work from the supply furnished and that it was an error of judgment on the part of the foreman, McMahon, to direct the use of the one which proved defective; for the unfortunate consequences of which the defendant cannot be justly held responsible. The contract of the master does not extend further, in the direction of indemnifying his servant against injury from negligent acts, than that the negligence must be his own, or such as is legally to be charged to him. If the master does, or must, employ some one to represent him in managing the performance of the work, and he neglects no precaution in the selection of a competent foreman and in making all reasonable provision for a safe and proper execution of the work, he has discharged his duty. As to the details, in the execution of the work, the foreman and workmen are fellow-servants. This is a logical application of the rule of law and it is a just one.
It is said that the case of Vincent v. Alden, (
I think that the defendant, upon the evidence, given its broadest bearing and interpretation, was not responsible to the plaintiff for what happened upon the occasion in question. It was a case where an error of judgment was committed by the defendant's foreman and the risk of injury from his fault was one of those assumed by the workmen, as incidental to the *381 execution of the work, in its details. I think the evidence was insufficient to establish a cause of action and I, therefore, advise that the judgment appealed from be reversed and that a new trial of the action be granted; with costs to abide the event.
Dissenting Opinion
I think that under the evidence in this case the foreman, McMahon, was not a mere fellow-servant of the plaintiff but thealter ego of the defendant and that for his negligence the defendant was liable. The furnishing of suitable rope and other appliances for the prosecution of the work was the master's duty. If the alter ego of the master refused to give the workmen a proper rope I cannot see that the case differs in principle from one where the master failed to provide rope at all. The case before us seems to be on all fours with that of Vincent v.Alden (
It is sought to distinguish that case from the one at bar by the fact that the tool car was left at Mooers Junction, some seven or eight miles away from the point at which the bridge was to be erected. It must be borne in mind, however, that the tools, with the bridge material, were sent to Merrill in Clinton county, and that the failure to bring the tool car to the site of the bridge, if negligence, was the negligence of Merrill. But, beyond this, Merrill testified that he did take with him from the tool car a number of chains for use in erecting the bridge. The jury might have credited this testimony, and the request to charge was based upon the condition that the jury should find that the defendant had furnished sufficient chains. Therefore, the fact that the tool car was at Mooers Junction does not affect my contention that the case necessarily decided that for the failure of the superintendent to give the workmen a proper chain the defendant was liable.
Nor do I think that the decisions of the Supreme Court of the United States are in conflict with the view I have expressed. It is very possible that the Supreme Court does not attach the same importance to the power to employ and discharge workmen that this court does. Still it fully recognizes the doctrine that for the misconduct of an alter ego or vice-principal the master is liable. In Alaska Mining Company v. Whelan (
I vote to affirm the judgment appealed from.
O'BRIEN, HAIGHT and WERNER, JJ., concur with GRAY, J.; BARTLETT and VANN, JJ., concur with CULLEN, Ch. J.
Judgment reversed, etc. *384