Miller v. City of Rochester

Hubbs, J.: The judgment in this case should be reversed because of the error in the judge’s charge in which he stated to the jury: “ It comes right back to the two propositions: Did the city assume this burden, and if the city assumed it, did it fulfill the duty which rested upon it of furnishing a safe place to work.” The duty of furnishing a safe place to work did not rest upon the city, as the deceased was not a servant of the city and even if the duty did rest upon the city, it is questionable if the principle of a safe place to work, as that expression is used in the law of master and servant, applied to the situation. (Neagle v. Syracuse, B. & N. Y. R. R. Co., 185 N. Y. 270; Fink v. Slade, 66 App. Div. 105.) It seems to me, however, that the complaint states a cause-, of action against the city not as master. The complaint states-that the defendant and its agents were negligent “ in failing to inspect the same and "in failing to give the. deceased notice of the "insecure, unsafe and dangerous condition, and allowing [855] the deceased to work and climb said pole without notice of its unsafe and dangerous condition. That the defendant had due notice of such unsafe and dangerous condition and of the fact that work was to be done thereon by deceased and others and that the condition of said pole rendered work thereon unsafe and dangerous.” If the city, through its superintendent, DeWitt, had not taken affirmative action, it would not have been liable for the injury that occurred. There is evidence in the record, however, that DeWitt was chief engineer of the disposal plant and had charge and supervision of the plant and grounds about it, and that he had charge of the grading, and the jury might have found that in grading he had removed earth from around the base of the pole. The jury might have found, also, that it was of benefit to the city to have the contractor use the pole in question; that DeWitt, the superintendent, gave instructions to take the pole and said that it would be all right to take it, that he was in charge there and would be responsible for it. This, with other evidence which may be offered upon a new trial, may be sufficient to establish the fact that DeWitt represented the defendant in what he did and that he acted within the scope of his authority. Under such evidence it seems to me that there would be' a question for the jury under the principle that where one undertakes to do something involving a dangerous situation he must do it with reasonable care even though he is not under any contract obligation to do anything at all. We had that question up in this department in the case of Miller v. International Harvester Co. (193 App. Div. 258). If DeWitt, within the scope of his authority, interfered with the work and instructed the men to use the pole in question, knowing that it was in a dangerous situation, or having such knowledge as should have led him to investigate, at least, before instructing that it be used, he brought himself within the principle laid down in that case. All concur, except Lambert, J., who votes for reversal and dismissal of the complaint. Judgment and order reversed and new trial granted, with costs to appellant to abide event.