Simone v. Kirk

McLennan, J.: The only.respect in which it is claimed the defendants were negligent is that they failed to- furnish a safe place for the "plaintiff’s intestate to perform the duties assigned to him by their foreman- and that was the only question relating to the defendants’ negligence which was submitted to the jury. The learned trial court charged that there was no evidence that the foreman was.incompetent, and that the defendants were not liable for his negligence, even if he was negligent in directing the deceased to work under the overhanging mass of material. As we have seen, the place, tools .and appliances .furnished' by the defendants for the removal of the material in the dump were entirely safe and suitable when the work began, and when it was placed in charge of the foreman. The place where the plaintiff’s intestate was killed became unsafe solely because of the manner in which the detail of the work was performed, to wit, because the hardened mass of material which fell had been undermined by other workmen, to the end that it might fall to the ground and then be moved out of the way, instead of loosening it at the top and thus causing it to fall.' The rule is well settled that where a master in the first instance furnishes a reasonably safe place for his employees to work in, he is not liable to one of them for injuries sustained on account of the place becoming unsafe because of the manner in which the detail of the work is performed under the direction of a competent foreman. [465] (Capasso v. Woolfolk, 163 N. Y. 472; Perry v. Rogers, 157 id. 251; Loughlin v. State of New Work, 105 id. 159; Hussey v. Coger, 112 id. 614; Hutchinson v. Parker & Co., 39 App. Div. 133.) It is urged that the ease at bar does not fall within the rule above stated, because of the fact that the plaintiffs intestate, or those with whom he was immediately associated in work (the night gang) did not in any manner cause the dangerous situation which caused the accident, and, therefore, that the deceased did not know or have opportunity to know of the exact conditions existing immediately prior to the accident. The deceased, it will be remembered, had only been employed upon the work in question one night prior to the accident, the night previous, and then at the extreme westerly end of the dump, about 200 feet from where he was injured. Upon the night of the accident, about seven o’clock (the accident occurring about three o’clock a. m.), the deceased with the rest of the night gang was put at work at the westerly end of the dump, in the immediate vicinity of where the dangerous place was, and which had been made so by the day gang. It is claimed that as to the deceased, the place, as it existed at seven o’clock, was the one furnished by the master, and that, it being unsafe at that time to the knowledge of the foreman, and the accident having been caused thereby,, without fault on the part of the deceased, the master is liable. We think the claim is not tenable. The plaintiffs intestate knew that the defendants were engaged in removing material from the dump along its entire length; that the day gang of defendants’ employees were engaged in doing the same work at the easterly end that he and the other members of the night gang were doing at the westerly end; that all were engaged upon the same job, upon the same work, and were prosecuting a common enterprise. The fact that the deceased had only been employed one night previous to the accident cannot be important as bearing upon the defendants’ negligence. If he had been at work, upon the dump each night from the twenty-second of May, when operations commenced, and had been kept constantly at the westerly end until the night of the accident, his situation would have been in no manner changed. In that case he would have known no more, about the real condition of the work at the easterly end, the manner in which [466] it had been done, the way in which the jfiace had been left by the " day gang, upon the night in question, than if he had not been-employed by the defendants at all during such period. A master is not chargeable with negligence because his foreman, the person - in charge of the particular work, fails to keep each. ■ employee informed as to the manner in which a co-employee oían other gang of employees has performed his or its duties in respect, to the same work, even although such failure results in injury to an employee. (Cullen v. Norton, 126 N. Y. 1.) In speaking of that case the court, in Perry v. Rogers (supra), said: “ In that case the place of employment was a quarry under ground, from which rock was being taken to be used in the manufacture of cement. This rock was excavated by means of blasting,, in the performance of which work holes were drilled in the rock, and subsequently explosives inserted. . After a blast it was found by the foreman in charge that one of the charges had not exploded.. A further examination showed that the fuse was unconsumed, but he omitted to remove it, and put the plaintiff’s intestate at work drilling about thirty feet distant. Shortly afterwards the fuse caught fire and the charge exploded, causing O.’s death. There . the question was presented and decided whether the. master was-chargeable with neglect of duty in that the quarry was not a safe place to' work in at the moment of the explosion. It .was held that the defendant discharged his duty when he furnished a quarry which was at that time as safe a place to work in as .quarries generally are, and certainly free from the dangerous substance which subsequently caused the accident.” An examination of the facts will show that the plaintiff’s intestate in that case did not know, was not informed how or in what manner the employees charged with the duty of discharging the blasts had • performed such duty, and, so far as appears, he had no reasonable means of obtaining such information. The defendants’ foreman had such knowledge, knew that the blast had not been discharged, knew that the place was then dangerous, but, notwithstanding,, directed the plaintiff’s intestate to proceed to drill another hole in the immediate vicinity ; an explosion occurred, and thus his death was caused. It having been held that no recovery could be had in that ease, it would seem idle to argue that a recovery can be sus [467] tained in the case at bar, based upon the fact that the defendants’ foreman failed to inform plaintiff’s intestate of the unsafe or dangerous condition of the place in which he was directed to work immediately prior to the accident or because plaintiff’s intestate did not possess such information. The plaintiff’s intestate, the defendants’ foreman, the members of the night and day gang, were all co.-employees, all engaged in a common enterprise, were all performing substantially the same duties, and for the negligence of one, resulting in injury to another, the defendants are not liable. The fact that the night gang took the place of the day gang, and took up the work as it was left by the latter, can in no way change the rule or increase the master’s liability. If an employee in the gang to which the deceased belonged had been directed by the foreman to undermine the hardened mass in question, and, when he had nearly completed the work and the mass was about to fall, to the knowledge of the foreman, the plaintiff’s intestate had been directed to take his place and complete the work, and while so' doing the accident had occurred, it could hardly be claimed that the defendants would be liable. Clearly that would be a detail of the work, and the fact that the foreman was negligent in directing defendants’ employees in regard to such detail could not be made the basis of a recovery. The same principle applies notwithstanding the fact that the mass was substantially undermined by the day gang, and several hours before the plaintiff’s intestate was directed to complete the work. We think th*e decision in the case of Perry v. Rogers (supra), and the cases referred to in the opinion of the court in that case are decisive of the questions involved upon this appeal. The conclusion is reached that upon the evidence, interpreted most favorably to the plaintiff, he failed to establish actionable negligence on the part of the defendants, and, therefore, that the judgment and order appealed from should be reversed and a new trial ordered. All concurred. Judgment and order reversed upon questions of law only, the court having examined the facts and found no error therein, and new trial ordered, with costs to appellants to abide event.