Fagan v. Wells Bros.

Lehman, J. Plaintiff was injured while working for defendant in an areaway or excavation by the fall of a wheelbarrow loaded with stone. It appears that the barrow fell from a runway furnished by the defendant to its workmen. This runway was built for the purpose of wheeling the barrows from a hoist to a wagon dump. The workman who had been in charge of the wheelbarrow which fell upon plaintiff testified that “there was another run which came upon a lap upon this one, and it left tne so that I had to go on the left side of the run to escape from the lap of another run that was going on the same floor with about one plank and a half; and upon that I had to rest my hands like this (indicating) to clear these planks, and in dropping the barrow I had to lift my hands to clear this and the barrow, being a little bit heavily loaded, overbalanced and went over into the cellar.” On cross-examination this workman testified that he had been at work for two weeks and a half and had no accident before; the runway was in the same condition and he had gone up more times than he could count. The defendant’s foreman testified that, while this runway was lapped by another runway, the space left was as wide as is customary in a runway, and the second runway formed no obstruction to a wheelbarrow. [339] The sole question in the case is whether an areaway, under a runway built and used as in this case, without any protection from above, is a safe place to work. Witkowski v. Carter & Sons Co., 60 App. Div. 577; Morrissey v. Dwyer, 121 id. 247. If the runway was built in such a way that the accident could occur only through the negligence of one of the workmen, then we must hold as a matter of law that the master was justified in believing that he had performed his full duty in providing a safe place, because the master is not bound to guard against the negligence of plaintiff’s fellow workmen; but, if such an occurrence could have been, apprehended and guarded against, then he was negligent and, even though in this particular case the barrow may have fallen through the negligence of plaintiff’s fellow servant, yet that would be only a concurring cause of injury, if the defendant was also negligent, and the defendant would nevertheless be liable. Kremer v. N. Y. Edison Co., 102 App. Div. 433, and cases therein cited. Moreover, in considering the question whether such an occurrence could occur, except through the negligence of a fellow servant, the courts should not require a high degree of care. A master cannot apprehend that his workmen will be negligent, but he can apprehend that they will not always exercise active and alert care. In the case of Morrissey v. Dwyer, 121 App. Div. 247, there was an obstruction described as follows: “A man with a loaded wheelbarrow could not pass the derrick, but that by being careful he could take an empty wheelbarrow along that way by turning it sidewise.” It was there held that this master had no-t performed his duty in furnishing his workmen with a safe place to work. It seems to me that, in all cases where the employee is working in a place where the conditions are such that his fellow employees must exercise some degree of care to avoid injuring him, it is a question for the jury whether the employer was justified in anticipating that his employees would exercise the requisite degree of care. The testimony of plaintiff’s fellow workman, that he had used the runway more times than he could count, is strongly corroborative of the testi [340] mony of defendant’s foreman, that no injury could occur except through the negligence of a workman; yet it seems to me that, in view of the fact that there were two runways lapping each other, at the point where the accident occurred, it was a question for the jury whether or not the defendant was negligent in not providing some protection against falling debris. The judgment should be affirmed, with costs. Daytoe and Seabury, JJ., concur. Judgment affirmed, with costs.