Vogel v. American Bridge Co.

JENKS, J. This is an action for negligence by servant against master. The servant complains that he was injured by the fall of a metal truss, caused by a break of an inadequate rope lashing. The master, appellant, relies upon errors of law. Its learned counsel asked the court to charge that “if the defendant furnished an abundance of rope reasonably safe and proper for the work, and employed a competent foreman, it was not liable for an error of judgment on his part, if one was committed, in the selection of the rope.” The court declined to give the charge in that respect any further than it had [800] already charged. The request was not pertinent. For, on the one hand, the version of the plaintiff is that two fellow servants of the plaintiff, charged with the duty of fastening the rope around the truss, thinking that the rope was too weak, asked McCarty, who was in charge of the work, to furnish a stronger rope, but that McCarty, though he had other ropes at hand, refused, and directed the men to use the rope which thereafter broke; and, on the other hand, the defendant contends that none of these things happened at all; that he was neither asked to select nor selected a rope, but that an abundance of other rope furnished by it was then accessible to the men. The court was also requested to charge: “In the selection of this rope in question, the master had no duty to perform, other than to provide a proper rope ready for use, and that in the selection of the rope, whether such selection was made by one of the subordinate employés or by the foreman himself, the foreman was simply acting as a co-employé in respect to a detail of the work, and not performing an act of the master for the master.” I think the court was justified in its refusal. The proposition of the appellant was based upon the assumption that the foreman was a co-employé, and that there had been a selection of the rope by him. The theory of the plaintiff, as I have said, was radically different, in that he contended that the “foreman” was the alter ego of the defendant, and that he (and consequently his principal) did not select, but refused to furnish, an adequate appliance. The defendant is a corporation. There was evidence that the foreman was “boss of the job,” and the sole superintendent thereof, with power to employ and to discharge, and that, acting in such capacity, while in absolute control of many ropes, he refused to furnish any rope but that used. There was evidence sufficient to declare him the alter ego of the master. Hussey v. Coger, 112 N. Y. 614, 616, 20 N. E. 556, 3 L. R. A. 559, 8 Am. St. Rep. 787; Crispin v. Babbitt, 81 N. Y. 515, 37 Am. Rep. 521; Wood on Master & Servant (2d Ed.) p. 865. It was the duty of his principal to furnish reasonably safe and suitable implements for the use of the plaintiff: Cullen v. Norton, 126 N. Y. 1, 5, 26 N. E. 905. If, in so doing, the alter ego was negligent, then the liability is cast upon his principal. Loughlin v. State of New York, 105 N. Y. 159, 11 N. E. 371. I think that the learned court (Smith, J.) made no errors in his rulings, and that the judgment and order should be affirmed, with costs. All concur, except WOODWARD, J., who dissents.