#### MICKEE v. WALTER A. WOOD MOWING & REAPING MACH. CO.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

Master and Servant—Safe Place for Servant to Work.

Where an employe of defendant, while working near a building in course of construction for defendant by an independent contractor, was injured by the fall of a piece of timber from the building, defendant is not liable on the ground that a safe place was not furnished for the employe to work, unless it had notice of the danger of falling timbers, or could have known of it by reasonable care.

Appeal from circuit court, Rensselaer county.

*919Action by Agnes Mickee, as administratrix, against the Walter A. Wood Mowing & Reaping Machine Company to recover damages for the death of plaintiff’s intestate. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the judge’s minutes, defendant appeals. Reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Hinsdill Parsons (G. B. Wellington, of counsel), for appellant.

Martin & Kelly (Olin A. Martin, of counsel), for respondent.

HERRICK, J.

At the time of the accident which gave rise to this action, the defendant was engaged in laying some railway tracks upon its premises. Alongside of these tracks, and about four feet distant therefrom, at the point where the accident happened, there was a building in process of erection for the defendant, aqd upon its premises. 'On the third floor of the building, on a beam or plate upon which the third floor lay, were a number of upright posts of spruce timber, about 10 inches square and about 10 feet long, and about 15 feet distant from each other, which were to support, as I understand it, the fourth floor of such building. While the plaintiff’s intestate was engaged in laying the railway tracks alongside of such building, One of these posts fell upon him, and caused his death. This case has once before been to this court upon appeal. 70 Hun, 450, 24 N. Y. Supp. 501. Upon the former trial, no evidence was offered upon the part of the defendant, but a judgment of nonsuit was granted at the close of the plaintiff’s case, and this court held that, upon the facts as then they appeared, the nonsuit was erroneously granted, and that the case should have been submitted to the jury. The case, as it now appears, differs in essential particulars from that before the court upon the former appeal. It then appeared:

“That this post had stood there three or four days before it fell (70 Hun. 457, 24 N. Y. Supp. 501), and there was no evidence shown that the post had been guyed or secured, and, as was then stated, it needs no evidence to show that a stick set up on end of the dimensions of the one by which the injury was inflicted, unless the same was well guyed or secured, was liable to fall.” 70 Hun, 459, 24 N. Y. Supp. 501.

It now appears in the case that this1 building was being erected for the defendant in pursuance of a contract with one Charles A. Russell, who employed the men who were at work thereon, and paid them; that said Russell was a contractor and builder, who had been engaged in such business for 18 or 20 years; that the post in question was raised and placed in position Saturday afternoon; that it was stayed and secured in the following manner:

“There was a hard-pine block nailed onto a stringer, and the post was nailed onto that and nailed to the bottom and stayed both ways. The stay was an inch board, about eight inches wide, nailed on, and a stay lath nailed to a cleat that was nailed to the floor, and another one to the top of the post and the outside of the building.”

After the post was erected, some of the men employed went up to the top of it by means of a ladder set up against it. One of the men testifies that he went up three different times. As before stated, *920the post in question was erected Saturday afternoon, and the following Monday, between 8 and 9 o’clock in the morning, plaintiff’s intestate was killed by its falling upon him. The reason of its falling does not appear. There is some testimony that there was a strong wind blowing at the time, and the assumption is that the post was blown over by such wind. It will thus be seen that the ca.se is presented in quite a different aspect from what it was upon the former appeal. The defendant is not liable for any negligence in the erection of the post, or for any injury resulting from such negligent construction, the building being in process of construction by an independent contractor. Devlin v. Smith, 89 N. Y. 470; Butler v. Townsend, 126 N. Y. 105, 26 N. E. 1017; Wyllie v. Palmer, 137 N. Y. 248, 33 N. E. 381. But it is said that the defendant has failed to perform its duty to plaintiff’s intestate in not furnishing a safe place in' which to work. The duty of the master to furnish a safe place in which his servant may work is not an absolute duty. “He is not bound to furnish them an absolutely safe place to work in, but is bound simply to use reasonable care and prudence in providing such a place.” Harley v. Manufacturing Co., 142 N. Y. 34, 36 N. E„ 813. He is not an insurer of the safety of the place or an insurer of his servant against injury. As was said in Butler v. Townsend, 126 N. Y. 105, 26 N. E. 1017: “A place in its broad sense is never safe in which an accident happens, and an accident always happens in some place, and so the master might almost become an insurer.” The duty of the master is discharged by furnishing, not an absolutely, but a reasonably, safe place, and by the exercise of reasonable care and watchfulness in keeping it safe. To render him liable, there must be some positive fault on his part, either of commission or omission. “The liability of the master for injuries to the servant received in the service is based upon his personal negligence, and the evidence must establish some personal fault or neglect of duty on his part, or, what is equivalent thereto, in order to justify a verdict, and he is entitled to the presumption that he has performed this duty until the contrary is made to appear.” Crown v. Orr, 140 N. Y. 450-453, 35 N. E. 648. It is culpable negligence which makes the master liable, not a mere error of judgment. Harley v. Manufacturing Co., 142 N. Y. 31-35, 36 N. E. 813.

The place where the plaintiff’s intestate was working appears to have been a safe place, except as it was made dangerous by the negligent erection, if it was negligently erected, of the post which fell, and for that, as we have seen, the defendant was not liable; neither can it be held liable for the dangerous condition in which such negligent erection placed the premises where plaintiff’s intestate was employed, unless it had notice of such danger, or, by reasonable care and watchfulness, could have acquired knowledge. It is not claimed, nor is there anything in the evidence to show, that the defendant had any actual notice of any negligent or improper erection of the post which fell; indeed, from the manner in which the post was secured, guyed, and braced, and the tests to which it was subjected, after it was erected, by persons repeatedly climbing up upon it, it appears to have been reasonably well secured. It was done under *921the supervision of a man who had been engaged from 18 to 20 years in the erection of buildings. But, assuming it to have been negligently placed and insufficiently stayed, in the absence of actual knowledge of that fact on the part of the defendant I do hot^think that there is anything in the evidence by which we are entitled to say that it had constructive notice, or that there has been an omission of duty on its part in not ascertaining the negligent placing of the post. It was placed in position Saturday afternoon, and then was so securely in position that men could climb up upon it, and the following Monday, between 8 and 9 o’clock in the morning, it fell. These facts being uncontradicted, it does not seem to me that there is anything in them from which we can hold that the defendant by inspection could have acquired knowledge of any defect or unsafe condition, or that sufficient time had elapsed within which we can say that it ought to have acquired knowledge, and hence had constructive notice. For these reasons, the judgment should be reversed, and a new trial granted, costs to abide the event.

MAYHAM, P. J., concurs in result. PUTNAM, J., concurs.