Hatton v. Hilton Bridge Construction Co.

Putnam, -J.: A master owes to 1ns servant thq duty of furnishing a safe place-in which to prosecute his work, and "adequate and suitable tools, implements and appliances therefor, and this duty cannot be delegated to any servant of whatever grade, so as to exempt the master from liability to a servant injured by its non-performance. (Pantzar v. Tilly Foster Iron Mining. Co., 99 N. Y. 368; Laning v. N. Y. C. R. R. Co., 49 id. 521, 532; Corcoran v. Holbrook, 59 id. 517.) In the performance of -this duty;, care and caution to protect the-servant are required óf the master, and a proper inspection, bqth before the work of the servant has commenced, and during its continuance. (McGovern. v. C. V. R. R. Co., 123 N. Y. 280; Buckley v. Port Henry Iron Ore Co., 17 N. Y. St. Repr. 436; 117 N. Y. 645; Benzing v. Steinway & Sons, 101 id. 547; Fuller v. Jewett, 80 id. 46 ; O'Donnell v. East River Gas Co., 91 Hun, 184; Richards v. Hayes, 17 App. Div. 422; Hankins v. N. Y., L. E. & W. R. R. Co., 142 N. Y. 416.) If a servant sustains damages-in consequence of the failure of .the master to perform this duty, the latter is liable therefor. But it is also an established doctrine that, while the master is-liable to a servant who is injured by tlie negligent act of another, if such act-.relates.to the duty the master owes to its servants, yet, if" the act is one pertaining to the duty of an operative, the employee401 performing it, no matter what his position or rank, is a fellow-servant, and the master is not liable for his negligent act. (Crispin v. Babbitt, 81 N. Y. 516.) We are called upon, therefore, to determine whether or not it was the business of the defendant, not only to prepare clamps, which, if used, would have prevented the injury to the plaintiff, but also, by a proper inspection of the work, to see that they were properly placed. The plaintiff, at the time of the accident, under the direction of the defendant’s foreman, was standing on a timber suspended by- an iron rod attached to a girder above. The clamp, prepared to prevent the slipping of the rod on the girder, had not been used, and, hence, the appliance or instrumentality to support the scaffold, when the plaintiff commenced work thereon,- was unsuitable and unsafe, and had never been made otherwise. The placing of the rods preceded the work the plaintiff was called upon to perform. He testified that they were all but one affixed to the girder the Saturday before he was called to work on the scaffold, and that one he did not see placed. The evidence permitted a finding by the jury that the plaintiff did not know how the rods were fastened to the girder, that such fastening was insecure, or that clamps had been provided to prevent the rods from slipping, or that they were necessary for that purpose. From the testimony, it is not clear that, although the clamps had been made, they were, at the time of the accident, at the place where the work was being carried on. The • testimony of the defendant’s president, Sweet, and vice-president, Hilton, showed that it required mechanical knowledge and skill, which the plaintiff, a laborer, cannot be deemed to have possessed, to determine whether or not clamps were required. The jury, I think, could have properly found from the evidence, had it been submitted to them, that the defendant did not discharge its wbole duty to its laborers in furnishing clamps to its-foreman, but that such duty required it to place the clamps so that the timber on which the plaintiff was called to work was securely attached to the girder above; that it failed to provide the plaintiff a suitable place in which to perform his work, or safe appliances therefor; that the act of the foreman, Austin, in omitting-to use the clamps, [402] constituted a failure to discharge a duty the defendant owed to the plaintiff, to exercise proper care-to protect him from injury ; that it had a duty of inspection which was not performed. Under the authorities above cited, the duty of exercising care and caution to make the place where the plaintiff was called upon to work —• and to that end a careful and proper inspection thereof—was the duty of the master and not of its serpants. Being a corporation, it was necessary to intrust this duty to a servant. But for the act or omission of the foreman in - that regard, the defendant was responsible. In Manning v. Hogan (78 N. Y. 615, 616), an action to recover damages for the death of the plaintiff’s intestate, caused by the fall of a scaffold claimed to have been negligently constructed, it was said : “ That the question of negligence in building the scaffold was for the jury, that it was not sufficient that there was enough of suitable material provided to build the scaffold. It needed that there should he skill and judgment in the use thereof.” So, in this case, the master was bound not only to furnish proper material for the platform, but to exercise skill, judgment and due care in the- use thereof. This skill, judgment and due care were required of the master. It is claimed that the structure which the plaintiff wa.s at work upon when injured, consisted not only of the timbers on which the floor of the scaffold.was to be placed-, but also the rods to support such timbers; that the defendant, having furnished proper rods and clamps to prevent the same from slipping on the girders above, and proper materials and appliances for the structure, as well as a competent foreman, the placing of the rods and the building of the scaffold was the work of the defendant’s servants; that, although the plaintiff did not aid in affixing the rods to the girders, that work was done by other employees of the defendant engaged in the building of tlie scaffold, and such other employees, including the foreman, must be deemed co-servants of the plaintiff, and, hence, the defendant is not liable for his or their negligence. (Hussey v. Coger, 112 N. Y. 614; Kimmer v. Weber, 151 id. 417; Ulrich v. N. Y. C. & H. R. R. R. Co., 25 App. Div. 465 ; Kennedy v. Jackson Iron Works, 12 Misc. Rep. 336; Cullen v. Norton, 126 N. Y. 1; Butler v. Townsend, Id. 105; Cregan v. Marston, Id. 568.) [403] I do not regard the above authorities, or others relied upon by the learned counsel for the respondent, as analogous in principle to the present one. Those authorities refer to accidents occurring during the progress of the work, where the servant is necessarily aware of the danger; where he knows, or ought to know, as much in regard to the safety of the place where he is called to work, as the master; to cases where the master has performed his duty of furnishing and maintaining a safe place'for the servant to perform his work in, and safe and proper instrumentalities therefor. After that duty has been performed, they determine that, if a servant is injured because of the manner of the performance of. the work, the master is not liable. , It is often difficult, in cases like the one under consideration, to determine the question as to what is the master’s and what the servant’s work. Every case must be judged by its own facts and circumstances. 1 think, under the facts shown on the trial, it was the defendant’s duty as master to make the place where the plaintiff was called upon to work safe; and that, although it delegated that duty to the foreman, it is responsible for his acts or negligent omission of duty in that regard. The defendant was erecting a scaffold, the timbers of which, instead of being supported in the usual manner underneath, were suspended by iron rods attached to curved girders above. On the timbers and scaffold to be placed thereon the defendant’s servants were to be employed. It was the defendant’s duty as master to devise a plan to render the structure safe, and prevent the straps from slipping on the girders. That duty was performed. But it was also its duty, by a careful inspection, to see that the plan was carried out. That duty, although intrusted to its servant, was the master’s and not the servant’s work. The forming of a proper scheme to make the scaffold a safe place for its employees was not the performance of the whole duty the defendant owed its servants. It was bound, also, to see that the appliance prepared to prevent the rods from slipping was used ; that the plan it prepared was adopted and carried out. Again, the jury would have been permitted to find, if the case had been submitted to it, that the danger to which the plaintiff was exposed from the slipping of the straps was a hidden one; that it required mechanical knowledge and skill to determine whether or [404] not clamps were required, which the plaintiff, as a laborer, did not possess; that he did not know that the clamps were prepared or were necessary ; that he was exposed to a secret danger arising from the failure of the defendant to effectuate its plan to render the place on which he was called upon to work safe. The authorities on which the respondent relies do not hold that it is not the duty of the master to protect the servant from such a hidden ’peril, but impliedly a' contrary doctrine. In those cases the master was held not liable, because, in the first instance, he had performed his duty of furnishing a servant with a safe place to work in, arid the injury to tfie servant was caused by the manner of conducting the work, the perils arising therefrom being known to the servant as well as the master. Thus, in Cregan v. Marston (126 N. Y. 568), where the servant was killed by the breaking of a rope attached to a derrick, the master having provided other ropes to be used by the servant when required, Finch, Jl, remarked: “ The workmen, therefore, were left in a position of perfect safety as to the sufficiency of the falls against everything save their own negligence or error of judgment. The rope was swinging before their eyes, and would disclose its approaching weakness on the surface before it became rotten or pulpy within, and they were able to know how long it had been used, and so whether prudence required it to be changed. They were at liberty, and knew they were at liberty, to supplant one which exhibited marks of weakness with another both new and sufficient from the supply kept on hand.” (To the same effect, see Kimmer v. Weber, 151 N. Y. 417, 423 ; Powers v. N. Y., L. E. & W. R. R. Co., 98 id. 274, 280; Shaw v. Sheldon, 103 id. 667, 668; Marsh v. Chickering, 101 id. 396, 399.) Those authorities and others cited by the respondent do not hold that it is not the master’s duty, even during the progress of the work, to guard the servant from risks that are not obvious, that are unknown to him, and which woiuld require mechanical knowledge and skill to detect. The placing of the rods preceded the work the plaintiff was called upon to perform, and he - had the right to assume that they were safely and properly affixed to the girder above; that the master had performed its duty in furnishing a proper support to the timber he whs directed to stand upon. [405] If the views above stated are correct, the questions as to the defendant’s negligence and the contributory negligence on the part of the plaintiff should have been submitted to the jury. It also follows that the plaintiff did not assume the hidden danger arising from the improper affixing of the rods to the girder, and also that the question as. to his contributory negligence was for the jury. The judgment should be reversed and a new trial granted, costs to abide the event. All concurred, except Parker, P. J., and Merwih, J., dissenting.