Yaw v. Whitmore

55 N.Y.S. 1091 | N.Y. App. Div. | 1899

Hardin, P. J.:

According to the evidence the defendants’ principal office was at Rochester, some nine miles from the place where they were engaged in carrying on the contract for the enlargement of the canal. They directed their men to select suitable materials from their depot in Rochester, and to remove, them to the works and to erect a derrick for the purpose of carrying forward the work of enlargement of the canal. The defendants had a foreman, and he had charge of some men in the erection of the derrick. The mast of the derrick was anchored at its base by means of an iron pin set into a socket, and it was held in an upright position by guy lines or wire ropes or cables running from its top in different directions to different anchorages. One of the guy lines was anchored to a tree and was spliced a few feet from the tree — some of the witnesses say five feet from the tree, some say fifteen feet from the tree — and the ends were fastened together by means of clamps. When the line which extended eastwardly, and was fastened to a tree, broke, the derrick fell and as it fell it struck and injured the plaintiff. At the time of the fall the derrick had been in position and operation some three or four weeks, having been erected by the defendants’ employees under the direction of their foreman, Sampson. Of the cables carried from the city of Rochester out to the works, some of them were new, and .some of them had been used before, and several more cables were carried out than were actually used in the erection of the derrick. Sampson determined the number of guys to be used, and selected such as he regarded necessary from those that were carried to the works, and erected the principal derrick, and near to it a smaller one. The lines that were used had been in use on prior occasions, and were somewhat frayed and worn by use. Plaintiff’s witnesses say there were four guy lines, and the defendants’ witnesses seem to indicate there were five. It is stated by one witness that there was about 365 feet of new cable there at the time, and that it was reeled on to the hoisting drum attached to the derrick to avoid cutting it before it was needed. Only a portion of it was needed for hoisting purposes, and the other was available for other purposes. The derrick was erected in the prism of the canal, and its location was to be changed, from time to time, as might be become necessary in the progress of the work.

It is contended, in behalf of the appellants, that the master fmnished materials sufficient and of adequate character to have enabled the employees of the defendants to have constructed a reasonably safe and suitable -derrick to carry out the work that was in process, and that the construction of such a derrick, its erection, its supports and placing it in situation to accomplish the objects for which-it was erected, were all parts of the detail of the work which was to be performed by the employees of the defendants.

In the very careful and intelligent charge delivered by the trial judge to the jury, he said, in the body thereof, viz.: “ The master is only required to use reasonable care, skill and judgment in furnishing machinery and implements properly constructed, and ordinarily skillful and trustworthy agents to perform the labor. I charge you that it was the duty of the defendants to see that the derrick was properly constructed and that it had suitable and safe appliances ; in other words, the duty involved upon the defendants to exercise reasonable care in that respect. It was their duty, I say, to properly construct the derrick and to employ ordinarily skillful and trustworthy agents or workmen, and if the defendants did not use such care, skill and judgment and an injury to the plaintiff resulted therefrom the defendants are liable for such injury, providing the plaintiff was free from contributory negligence. * * * Touwill determine from the evidence whether that cable was a defective cable. That seems to be the pivotal point in this ease, and, in fact, I might say it is the only point upon which the plaintiff claims negligence on the part of the defendants.”

The manner of construction of the derrick and detail of the execution of the work — of its erection and the supports applied thereto by the servants of the defendants — were fully detailed and, to a large extent, commented upon by the trial judge in the course of his charge.

After the body of the charge bad been delivered, the learned counsel for the appellants made the following request to the court to charge: “ If the cable was reasonably proper for the work, the defendants are not liable because of the manner in which it was used by the men in setting, up the derrick.”

That request was declined and an exception was taken. The court added, however, “ I think it devolved upon the defendants to see to it that the derrick was properly erected and suitable appliances were furnished.” An exception was taken. The counsel for the defendants also requested the court to charge: “ If the defendants furnished materials for putting up the derrick, which contained enough good material to set the derrick up properly, they are not liable if there was some material in the hands of the men which was not proper, and which they used.”

In response to that request the court observed: “I leave the question to you, gentlemen, as to whether they were negligent in that respect. It was the duty of the master to see that proper materials were furnished, and the duties which devolved upon the masters could not be delegated to the servants so as to relieve them from responsibility.” An exception was taken to the charge.

We think the defendants were entitled to have the jury charged that if the cable was reasonably proper for the work “ the defendants are not liable because of the manner in which it was used by the men in setting up the derrick.”

The learned trial judge had not specifically instructed the jury upon the pivotal point in the request. The jury ought to have been instructed that if the cable was reasonably proper for the work, and that if the jury found that it broke because “ of the manner in which it was used by the men in setting up the derrick,” then the defendants were not liable. The manner in which the men used the cable that was furnished in setting up the derrick was a part of the detail of the labor which they were engaged in performing.

In Crispin v. Babbitt (81 N. Y. 516) it was held that, “ If the act is one pertaining to the duty the master owes to his servants, he is responsible to them for the manner of its performance ; but if the act is one pertaining only to the duty of an operative, the employee performing it, whatever his rank or title, is a mere servant, and the master is not liable to a fellow-servant for its improper performance.” The doctrine of that case was reasserted in Cullen v. Norton (126 N. Y. 6). Hear the close of the opinion in that case the court said : “ The master furnished the mine as a place for labor, and it was solely on account of the manner in which the foreman, a fellow-servant, performed the work or directed it, that the accident happened, and happened in the course of the performance of the very kind and character of work which the plaintiff’s intestate took the risk of by accepting employment.” The same doctrine was again adverted to and stated in Hankins v. N. Y., L. E. & W. R. R. Co. (142 N. Y. 420).

In Kimmer v. Weber (151 N. Y. 422) it was said: “ The master is not responsible for the negligent performance of some detail of the work intrusted to the servant, whatever may have been the grade of the servant who executes such detail.”

The exceptions to which we have referred seem to require a new trial.

All concurred, except Ward, J., not voting.

Order reversed, verdict set aside and a new trial ordered, with costs to the appellants to abide the event.