Ozogar v. Pierce, Butler & Pierce Manufacturing Co.

De Angelis, J. I think it can be fairly said that if the case had been submitted to the jury, it could have found that the plaintiff’s injuries were due to the negligence of Eoss in the performance of an act of superintendence. The English Employers’ Liability Act (43 & 44 Vict. Cap. 42, 1880), seems to be the model upon which employers’ liability acts in this country have been formed. Massachusetts adopted such an act in 1887 which as amended in 1894 seems to have been largely incorporated into our act which was passed in 1902. The design of this legislation was to limit the law known as the “Fellow Servant Law,” referred to, perhaps somewhat inaccurately, as the common law on the subject. Prior to this legislation in England, Massachusetts and this State, negligence in superintendence resulting in injury to a servant did not make the master liable, upon the fellow servant doctrine, provided the servant cf the common master performing the negligent act of superintendence was a competent servant whatever might be his grade in the common employment. [581] The Massachusetts courts adopted this language: “It is settled in this Commonwealth that all servants employed by the same master in a common service are fellow servants, whatever may be their grade or rank.” Rogers v. Ludlow Mfg. Co., 144 Mass. 198, 203 Judge Holmes discussing acts of superintendence in Kalleck v. Deering, 161 Mass. 469, 410, said: “Ordering the plaintiff to use the faulty triangle was an act belonging to the superior officer as such, and it might be that as to that a different rule would apply. Looking at the reason given for the exception to the general liability of masters for servants, the last suggestion cannot prevail. If the sailor takes the risk of a negligent injury to his person from a fellow sailor, there is equal reason to say that he takes the risk of a negligent command. A command is a transitory act which the employer has no chance to supervise. It is not like a permanent condition of land or machinery, or the abiding incompetence of an employee. * * * If the defendants have been guilty of no personal negligence, and the plaintiff does take the risk of the negligence of some persons with whom his work will bring him into contact, the question whether the negligence of one of those persons is within or outside of the risks assumed, is not a matter of names or dignities. That is too well settled to need the citation of cases. * * * The question is what he must be taken to have contemplated when he went into the employment. The chances of negligence on the part of a superior employed in the common business are as obvious as in the case of one of a lower grade, and, therefore, when the duty is not personal to the employer the same rule applies, whatever the degree of the negligent employee.” To the same effect is McGinty v. Athol Reservoir Co., 155 Mass. 183. Since the passage of the Employers’ Liability Act superintendence seems to have been added to the master’s duties and taken from the category of assumed risks. Mahoney v. N. Y. & N. E. R. R. Co., 160 Mass. 573; Crowley v. Cuting, 165 id. 436. Before the passage of the Employers’ Liability Act, in [582] this State, the mastpr was not liable to a servant for negligent superintendence if the person exercising superintendence was competent. Cullen v. Norton, 126 N. Y. 1; Perry v. Rogers, 157 id. 251. Since the adoption of the Employers’ Liability Act in this State superintendence has been added to the category of master’s duties and removed from the fellow servant doctrine. Faith v. N. Y. C. & H. R. R. R. Co., 109 App. Div. 222; affd., 185 N. Y. 556. This condition of the law does not make a superintendent or foreman the alter ego of the master in respect to all things which he may do in the master’s service. When he performs the work of another employee of the master which is not in its nature work of superintendence, he becomes a fellow servant wit-h the other employees and his acts are subject to the fellow servant doctrine. The Massachusetts'cases afford very satisfactory authority upon this proposition. In Cashman v. Chase, 156 Mass. 342, 344, the court said: “The employer is not answerable for the negligence of a person intrusted with superintendence, who at the time, and in doing the act complained of, is not exercising superintendence, but is engaged in mere manual labor, the duty of a common workman. The law recognizes that an employee may have two duties: that he may be a superintendent for some purposes, and also an ordinary workman, and that if negligent in the latter capacity, the employer is not answerable. * * * Unless the act itself is one of direction or of oversight, tending to control others and to vary their situation or action because of his direction, it cannot fairly be said to be one in" the doing of which the person intrusted with superintendence is in the exercise of superintendence.” See also Joseph v. George C. Whitney Co., 177 Mass. 176; Hoffman v. Holt, 186 id. 572. It seems to me, as I have already stated, that Boss in this case was performing superintendence service and in that service was negligent. To establish a liability against the defendant within the terms of our Employers’ Liability Act it must have appeared that Boss was a “ person in the service of the employer in [583] trusted with and exercising superintendence whose sole or principal duty” was “that of superintendence, or in the absence of such superintendent,” a “person acting as superintendent with the authority or consent of such employer.” It is reasonably clear that the Legislature by the adoption of the language quoted did not intend to narrow the meaning of the word “superintendence” down to what might be done by a person whose official designation was that of “ superintendent.” In common parlance “boss” is applied to a person who gives orders, who directs, who controls. The evidence was that Ross was the boss of the machine shop; that he gave all orders. It did not appéar that he worked with his hands; it did appear that he did not assist the seven men who were attenlpting to lower the flask; he “ watched when they were going to let it (the flask) down.”- When the men asked for the crane, he refused to let them have it and directed them to lower the flask by hand. At the time of the accident Ross was' directing the work of seven men. It does not appear that the defendant had a superintendent designated as such nor does it appear affirmatively that Ross was acting “with the authority or consent” of the defendant, but I think it may fairly be inferred from the evidence that he was acting with such authority and consent. In the application of the new feature in the duties of the master involved in superintendence, we come face to face with the difficulty to determine whether the facts of a given case bring it clearly within the operation of the new law or leave it clearly outside of the new law, and in that indefinite borderland where the advocate for the servant may play unduly upon the sympathy, or the advocate of the master may appeal unduly to the conservatism of the court. So long as human tribunals shall exist for the settlement of questions of this nature that borderland will present to the coldly scientific observer conflicting decisions. A foreman in charge of five men was held to be exercising superintendence. Mahoney v. N. Y., etc., R. R. Co., 160 Mass. 573. A foreman in charge of a gang of seven .men was held to [584] be performing superintendence service. McPhee v. Scully, 163 Mass. 216. McBride v. New York Tunnel Co., 101 App. Div. 448; Faith v. N. Y. C. & H. R. R. R. Co., 109 id. 222; affd., 185 N. Y. 556,. and Mikos v. N. Y. C. & H. R. R. R. Co., 118 App. Div. 536, seem to me to be authorities upon which this case, as the proofs stood, should have been sub-' mitted to the jury. Vogel v. American Bridge Do., 180 N. Y. 373, has no application because the action was not brought under the Employers’ Liability Act. . ¡Nonsuit set aside and new trial ordered, with costs to abide the event. Motion granted, with costs to albide event.