#### Andrew Hansen, Respondent, *v.*New York Dock Company, Appellant.

Second Department,

December 31, 1913.

Master and servant — negligence — injury to carpenter by fall caused by defective railing around platform — safe place to work — completed structure.

In an action at common law brought by a carpenter to recover for personal injuries it appeared that the plaintiff had been engaged by the defendant in building hoppers consisting of four upright corner posts reinforced with bracing strips, on the top of which was a platform from twelve to fifteen feet from the ground; that a week later while the plaintiff was engaged in doing some extra work on one of these platforms after their acceptance by the defendant, a railing which had been improperly and negligently laid gave way and he fell to the ground. *Held,*that the hopper was a completed structure upon which the plaintiff was directed to do additional work for the performance of which the defendant was required to furnish him a safe place and that a judgment in his favor should be affirmed.

Appeal by the defendant, New York Dock Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of February, 1913, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office denying defendant’s motion for a new trial made upon the minutes.

*Adolph F. Bruenner [James J. Mahoney*with him on the brief], for the appellant.

*Martin T. Manton [William H. Griffin*with him on the brief], for the respondent.

Stapleton, J.:

The plaintiff, a carpenter, sustained personal injuries while working for the defendant, a corporation. In a common-law action, laid in negligence, he received a verdict of $3,500. From the judgment entered upon that verdict, and from the order denying a motion for a new trial, this appeal is taken.

The plaintiff was fifty-five years of age. He had been *867employed by the defendant for about two years. On the morning of March 29, 1911, the date of the accident, he and a fellow-workman named Peterson were ordered by the general manager of the defendant to go upon the platform of a hopper standing on a dock at the foot of Conover street, Brooklyn, and place boards around the edging.

This hopper was a rectangular wooden structure designed to be used for the transfer of linseed from ships to railroad cars. Its framework consisted of four upright corner posts reinforced with bracing strips placed, some horizontally and some diagonally, from post to post. The distance from the ground to the platform was twelve to fifteen feet. The platform, in dimension eight feet by ten feet, was completely boarded. The corner posts extended some thirty inches above the platform. On two sides of the platform a strip of wood was laid from post to post, on top, forming a rail. At both ends of the third side there was a rail, but in the center of that side an open space was provided for a chute. There was no rail on the fourth side. The fourth or open side was up against the stringpiece, close to the ship. On the side where the platform was partly inclosed, and to the left as one faced the hopper, a ladder extended from the ground to the platform level. The ladder was formed by attaching strips of wood to the corner post and to another post placed there for the purpose.

The plaintiff and Peterson climbed to the platform by means of this immovable ladder, and proceeded to place boards around the edge as directed. The plaintiff placed the boards on one side and Peterson placed them on the other. The boards were seven-eighths inch by four-inch cleats. On his side, the plaintiff nailed on the first and second cleats, and possibly the third, by stooping under the rail. He could not nail on any more in this manner because of insufficient space between the last-placed cleat and the rail, and so he proceeded to finish the task by leaning over the rail. As he leaned thus, with a hammer in one hand and a cleat in the other, the rail gave way and he overbalanced and fell to the ground, carrying the rail with him. He received severe injuries, which, however, are not the subject of dispute upon this appeal. The rail had been improperly and negligently laid. Through one end of it a tenpenny nail had been *868driven, but the nail did not penetrate the post. “ It was driven on the outside.”

Four or five days before the happening of the casualty this hopper, and another and similar one, were built by the defendant’s carpenters on the defendant’s premises at the foot of Joralemon street, which is many blocks distant from the. foot of Oonover street, the place of the accident. It would seem that the plaintiff performed some of the work of construction. He denied that he assisted in the completion of the work, or that he was on the platform, or that he adjusted any of the rails. There is evidence that he had charge of the work and that he co-operated in the construction of the platform, but defendant’s witness Thompson testified that plaintiff had nothing to do with the placing of the rails, that he had not worked on the platform and that his work had been confined to the bracing.

In determining this case, we must assume that the plaintiff was engaged in the origial construction of the hopper, because if a finding that he was not was essential to his cause of action we would be required to set aside a verdict involving that finding as contrary to the evidence. That circumstance in the case was presented to the jury by the trial court in a satisfactory manner.

The contention of the respondent is that the defendant failed to provide him with a safe place in which to work. He argues that “The hopper, without dispute, had been constructed and completed a week previously and brought down to its permanent location, and plaintiff was simply engaged in making some additions which occurred to defendant’s superintendent as an afterthought. * * * This hopper without this addition was in every sense a completed structure, a permanent place to work. * * * To this permanent place defendant’s *alter ego*directed plaintiff to go about a week subsequent to the time when the structure was at Joralemon street for the purpose of making this addition to the sides of the hopper. ”

The appellant’s theory is that as to the plaintiff the hopper or its platform was not a “place.”

The chief question is whether, by his evidence, the plaintiff has brought his case within the general rule that it is the duty *869of the master to exercise reasonable care to provide for his servant a fairly safe place in which to do his work. This rule involves an obligation which is personal to the master, and which may not be delegated so as to escape the consequences of negligent performance. An answer in plaintiff’s favor depends upon the correct disposition of a fundamental inquiry: Was this a completed structure upon which he was directed to do additional work ? If it was, the general rule would apply. *(McGuire*v. *Bell Telephone Co.,*167 N. Y. 208, 210; *Kranz v. L. I. R. Co.,*123 id. 1; *Finn*v. *Cassidy,*165 id. 584; *Terranova*v. *City of New York,*158 App. Div. 489.) Was it an unfinished structure upon which he was working, “where the prosecution of the work itself makes the place and creates its dangers?” *(O’Connell*v. *Clark,*22 App. Div. 466; *Stourbridge*v. *Brooklyn City R. R. Co.,*9 id. 129; *Citrone*v. *O’Rourke Engineering Const. Co.,*188 N. Y. 339; *Capasso*v. *Woolfolk,*163 id. 472, 476; *Perry*v. *Rogers,*157 id. 251; *Mullin*v. *Genesee County El. L., P. & Gas Co.,*202 id. 275, 279.) If the case presents an affirmative answer to the latter question, “ all those who are engaged in the same common purpose are fellow-servants for whose negligence in executing the details of the work the master is not liable, even though c the work is done in successive stages, different parts thereof ■ being devolved upon different persons, and the labor performed by one set of employees being prior in time to that performed by another set.’ ” *(Mullin*v. *Genesee County El. L., P. & Gas Co., supra; Citrone*v. *O’Rourke Engineering Const. Co., supra,*and cases there cited.)

Of course, when it is said that a master is bound to furnish his servants with a reasonably safe place in which to work, it is plain that the rule applies only where in the ordinary conduct of the master’s business the master furnishes the place. *(McGuire*v. *Bell Telephone Co., supra.)*

We are of the opinion that the evidence in the case at bar warrants the conclusion that the general work of building the hopper had, a week before the casualty, been completed for the purpose for which it was originally designed; that it had been accepted and adopted by the master; that the addition to it, in making which the plaintiff was engaged when injured, was *870an afterthought supplementary to the original design and constituted a separate and distinct piece of work, for the performance of which the master was required to furnish a safe place in the hopper itself. If it be assumed that the necessity for this addition was not suggested or demonstrated for many weeks afterwards, could it be successfully maintained that the master could with impunity send his workman on a defective structure to make it simply because that workman had participated in the original construction ? We think not. After the original design had been executed, surely the element of time is unimportant. The nature of the additional work, considered in connection with the time when it was required to be done, is important.

Whether the plaintiff was negligent in not observing the insecure railing, or in pressing against the railing unduly, or in doing the work in the manner in which he did, and whether the defendant was negligent in failing to provide a reasonably safe place to work, surrounding the platform of which was the railing described, presented questions of fact for the jury.

I advise an affirmance of the judgment and order, with costs.

Present —Jenks, P. J., Thomas, Oarr, Stapleton and Putnam, JJ.

Judgment and order unanimously affirmed, with costs.