Bagley v. Consolidated Gas Co. , 39 N.Y.S. 302 ( 1896 )

Ingraham, J.:

As was said by Peckham, J., in the case of Cullen v. Norton (126 N. Y. 5): “ There is very little room for disagreement as to the principles of law in this class of cases, but the difficulty lies in their application to the facts of each special case.” And we can see no escape from the conclusion that the principles of law as there established by the Court of Appeals are controlling in this case.

In the case cited the defendant was the proprietor of a cement quarry, and the plaintiff’s intestate was engaged, with other men, under the direction of a foreman, in drilling rock in the quarry for blasting purposes. Prior to the accident eleven holes had been drilled in a perpendicular piece of rock, and were charged and fired, and but ten of them exploded. Doran, the defendant’s foreman, examined the unexploded hole, found the fuse unconsumed, but failed to remove it. The next morning he directed two of the workmen to drill holes in the rock within two feet of the undischarged hole, and at the same time ordered the deceased to drill twenty or thirty feet below. The exposed fuse shortly after, in some way, ignited the charge ; this exploded, casting out rock which fell on the deceased, killing him. The court held that the manner of the distribution of men for work, and the order of the foreman mistaken or negligently given, was a detail of the working or management of the business, the risk attending which had been assumed by the party taking the employment, and that the negligence of Doran in failing to remove the fuse, or in directing the plaintiff’s intestate to work at the place he did, near the hole in which the powder had not exploded, was not negligence of tlie master, but was the negligence of a fellow-servant, the court saying: “The accident resulted from a negligent act done in the very course of the work and by one of the fellow-workmen of the deceased. The negligent act was a part performance of the work itself, the risks of which the deceased had assumed. The master had provided a competent and experienced foreman, who had been in his employment a number of years, and he was not chargeable with the consequences of a place for work made dangerous only by the carelessness and neglect of a fellow-servant, * * * although that fellow-servant happened to be the foreman.”

As a further illustration of the application of this rule the case of Hogan v. Smith (125 N. Y. 774) is instructive. In that case the plaintiff’s intestate was a longshoreman engaged with others in loading a vessel with flour. “ In the square of the hatch and above the hold the workmen had laid plank, and built upon it with bags of flour what is called a 'stool,’ upon which four men stood and received the flour lowered to them in slings, and then delivered it to other men who stowed it away. It was customary for the longshoremen to extend the planks upon which the ‘ stool ’ was constructed to some distance outside of it, but that precaution had been omitted, and the deceased was struck by one of the descending loads and killed by falling into the hold. If the plank had been laid in the usual manner his life would have been saved. The negligence, therefore, upon which the judgment rests is the omission to lay the exterior plank, and the question discussed is to whom that duty pertained and whose negligence caused the injury.” The deceased commenced the labor after the stool had been built and without knowledge of the omitted plank and the possibility of danger. And it was held that the duty to close an opening by laying additional plank was that of the servant and not the master, and that no negligence on the part of the master was shown.

And in the case of McCampbell v. Cunard S. Co. (144 N. Y. 552) the same principle was applied. There the accident was caused by the imjtroper attachment of a skid by which one of the defendant’s steamships was being unloaded. The plaintiff with another employee of the company was directed to take a truck and transfer drums of caustic soda from the deck of the vessel to the dock. The skid was placed in position with one end upon the deck of the vessel and the other upon the dock. The plaintiff and his associate took the truck, drew it up the skid on to the vessel and placed it in position. Tho drums of soda were then raised from the hold of the vessel and placed on the truck. The plaintiff started down the skid drawing the truck after him. "When he was about half way down the front wheels of the truck dropped into an opening between the end of the skid and a “mouthpiece,” causing a sudden jerk of the handle of the truck', which threw him down, causing the injury. The court held that the defendant was not liable, and that the negligent rigging of the skid was the act of the co-employees of the plaintiff’s intestate.

We do not think that this case can be distinguished from the cases cited. Here a scaffold was constructed which appears to have been entirely safe for the purpose for which, it was to be used. The plaintiff in the employ of the defendant was directed to assist in hoisting a large tank into the pump house of the defendant through a window or archway. Upon this scaffold several boards had been placed which were not tied or fastened. The tank to be hoisted appears to have been improperly attached to the ropes, so that upon its being hoisted it turned over, striking in some way against a part of the scaffeld, knocking off the boards, one of which struck the plaintiff. If the tank had been properly secured to the ropes, or if the boards upon the scaffold had been removed or tied, no injury would have resulted. The defendant had supplied a proper scaffold, with proper boards and proper appliance for the work, and a competent foreman to direct it, and any negligence in the use of these materials by the foreman was clearly, under the cases above cited, the negligence of a fellow-workman, and one of the risks which the plaintiff assumed in accepting- the employment and undertaking the work that he was directed to do. There was thus no neglect of the defendant to supply the plaintiff with a safe and proper place in which to prosecute his work, safe tools and implements for his use, or a competent foreman to direct him in the work that he was to do, but simply a neglect in the proper management and use of the materials furnished. *

An examination of the cases relied on by the plaintiff, and an endeavor to reconcile the various decisions upon this question would serve no good purpose. The cases here relied on are the latest decisions of the Court of Appeals upon this question, and are controlling upon us; and we think they require that we should hold that there was no evidence of the defendant’s negligence which would justify a recovery.

The judgment must, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., and Rumsey, J., concurred; O’Brien, J., dissented.