(76 Hun, 579.)

#### MAHONEY v. VACUUM OIL CO.

(Supreme Court, General Term, Fifth Department.

April 12, 1894.)

1. Master and Servant—Safe Place for Servant to Work.

While plaintiff was working in defendant’s building he had to stand over a hole which had been cut in the floor. To enable him to do this *197the foreman placed a plank across the hole for plaintiff to stand on. Owing to a defect, which was concealed by dirt, the plank broke, and plaintiff fell through the hole. There were other planks which the foreman could have used. The floor was safe, except so far as there was danger of falling through the hole. *'Held,*that the injury was caused by using the defective plank, and not for want of a safe place to work.

2. Same—Negligence of Fellow Servant. •

Defendant was not chargeable with the negligence of the foreman in using a defective plank, as the liability of a master for injuries to one servant, caused by the act or omission of another servant, is dependent on the nature of the act or omission, and not on the grade in the service of the person whose act or omission caused the injury.

Appeal from circuit court, Monroe county.

Action by Stephen Mahoney against the Vacuum Oil Company. From an order denying a motion made on the minutes for a new trial, plaintiff appeals. Affirmed.

The plaintiff, by his action, sought to recover damages for personal injuries suffered by him, while in the service of the defendant, under the following circumstances: He, with others in the employ of the defendant, was engaged in putting a tank weighing about six tons into a hole about six feet in diameter, cut through the floor of the second story of the building, and onto a supporting iron girder about eight feet below the floor. For that purpose the lower end of the tank was placed so as to project some over the hole in the floor, and a two-inch rope was put through a hole in the bottom of the tank, to be there securely fastened, with a view to raising and placing the tank by means of a tackle above. For the purpose of doing the work of putting the rope through, and securing it there, the plaintiff and others were on a plank laid across the hole. It broke, and he was precipitated to the bottom of the building, and sustained the injuries complained of. He was nonsuited at the trial.

Argued before DWIGHT, P. J., and LEWIS and BRADLEY, JJ.

Eugene Van Voorhis, for appellant.

William F. Cogswell, for respondent.

BRADLEY, J.

The general principles applicable to the relation of employer and employé, in respect to the duties to be observed by the former for the safety of the latter while serving in such relation, are well-settled; and they may be embraced in the general proposition that the master assumes to his servant the duty of using due care to provide him with suitable implements for his use, and a safe place in which to perform his work, and that the master is not responsible to him for the consequences of the negligence of a coemployé unless he, with a knowledge of his unfitness, employs or continues him in the service. While this doctrine is recognized by the plaintiff's counsel, he contends that the defendant failed to perform the duty it owed to the plaintiff, in that it did not furnish him a place of safety to perform the work in which he was engaged at the time in question, and that his injury was the consequence of such default,—a neglect on the part of the defendant, or with which he was chargeable. If the placing of the plank over the hole in the floor was within the duties assumed by the defendant, the plaintiff’s case was improperly withheld from the jury. The hole about six feet in diameter had been cut in the floor. The tank was placed there to be hoisted, dropped into the hole, and upon the *198supporting girders below. This was the situation when the plaintiff and the other employés of the defendant proceeded to put the tank in .the place so' provided for it. To accomplish it, a rope and tackle "were brought into requisition. To draw the rope through the hole in the lower end of the tank, and there fasten the end of it, it was necessary for some one or more of those engaged in the work to occupy a place over the hole in the floor; and, to enable that to be done, the plank was picked up, and placed over it, by the foreman. The plaintiff and two other workmen, including him, were standing upon it, at work securing the end of the rope. The fourth man (Patterson) stepped upon the plank. It broke, and the plaintiff, with some others, fell about 18 feet to the bottom of the building, and was injured. It was a hemlock plank, nine feet long, one foot wide, and two inches thick. It was so smeared with dust or dirt as to conceal its defective quality from observation. The plank was brought into requisition as an expedient, for the time being, in the performance of the work of setting the tank in its place. There were other planks about there, which the men might have used as the means of strengthening the support, if they had chosen to do so. The floor was a safe place to work. The hole was rendered dangerous only by want of care to avoid falling through it. And so far as it was necessary, for the accomplishment of the work, to get over it, the means were—in the plank lying about— there to give safety and protection from danger. In such case it would seem that the act of making use of the appliances for such purpose is within the details of the work, and that of the employé, rather than of the master or his representative. Hogan v. Smith, 125 N. Y. 774, 26 N. E. 742; Cregan v. Marston, 126 N. Y. 568, 27 N. E. 952.

The fact that the employé who placed the plank over the hole in the floor was foreman in the work has no particular significance upon this question. Whether an act or omission having relation to the service of the employés is that with which the master is chargeable is dependent upon the nature of it, and not upon the grade in the service of the person whose act or default may come in question between the master and an employé. The relation of the foreman to the other workmen was that of coemployé, except as to such acts performed by him as were embraced in the duties of the defendant. Loughlin v. State, 105 N. Y. 159,11 N. E. 371; Cullen v. Norton, 126 N. Y. 1, 26 N. E. 905. The line of distinction may seem narrow between some cases where liability has and has not been sustained, founded upon the relation of master or coemployé to the causes which were the subject of complaint. In Hogan v. Smith the plaintiff sought to recover ón the alleged ground that the defendant had neglected to furnish a safe place for the plaintiff’s intestate to do the work required of him in the service. The court held that the omission of the employés to make use of the materials and means at hand for their own safety was their fault, and not that of the defendant, and that" it was their privilege and duty to use the means and materials to do the work in their own way. And such was the doctrine upon which was determined Cregan v. *199Marston, where the death of the plaintiffs intestate was caused by the continued use of a rope attached to a derrick, after it hadbecome so worn as to be unsafe, while there were other ropes from which they might have taken one to supply its place. It was held that it was in the details of their duty to note the wear of the rope, and, by observation, to ascertain when its condition became such as to require the substitution of another, for the safety and efficiency of the service.

The several cases cited by the plaintiffs counsel may, in support of those before mentioned, be distinguished from them. In Benzing v. Steinway, 101 N. Y. 547, 5 N. E. 449, the defective platform was provided for the work in view; and the plaintiff was called from his other service to perform, upon the platform, some work not in the line of his general employment. It was held the defective condition of the platform, which caused the plaintiff’s injury, was chargeable to the negligence of the defendant, although it was placed there by another in his service. In Kranz v. Railway Co., 123 N. Y. 1, 25 N. E. 206, the plaintiff’s intestate, an employé of the defendant, by direction, entered a trench which had been opened, to clean out underground water pipe; and while doing it the earth caved in, causing his death. It was held that the defendant owed him the duty of providing him a reasonably safe place to perform the work he was directed to do, and that he had the right to assume that it had been made reasonably safe Similar to this was the case of Wannamaker v. City of Rochester (Sup.) 17 N. Y. Supp. 321; Id.,137 N. Y. 529, 33 N. E. 336. In McLean v. Oil Co. (Sup.) 21 N. Y. Supp. 874, the defective scaffold on which the plaintiff was at work when it fell, causing his injury, was erected by carpenters in the service of defendant preparatory to the work in which the plaintiff was engaged at the time it gave way. In none of those three cases was preparation of the places for the work to be done within the details of the service in which the persons who suffered the consequences of the defective and unsafe conditions were engaged. A like principle, in some phases, is that upon which the other cases cited on the part of the plaintiff were determined. Pantzar v. Mining Co., 99 N. Y. 368, 2 N. E. 24; Bushby v. Railroad Co., 107 N. Y. 374, 14 N. E. 407. The present case is distinguished from those where the master has been held liable to his employé for not furnishing a reasonably safe place for him to work, in the fact that the plank which gave way was, in the use made of it, an instrumentality employed at the time in and of the work being performed, and as part of it. The place of the service was in the building, upon the second floor of it, which was safe. The means uséd to perform it were those appropriated by the employés as such. Butler v. Townsend, 126 N. Y. 105, 26 N. E. 1017. And the defendant, having furnished sufficient help, with materials, for the work, was not responsible for the use made of them, or for the negligence of any of them engaged in its performance. The fault was theirs, or that of some one or more of their coemployés. Hussy v. Coger, 112 N. Y. 614, 20 N. E. 556; Cullen v. Norton, 126 N. Y. 1, 26 N. E. 905.

It is urged with some force that as Patterson, the defendant’s superintendent, directed the plaintiff to go upon the plank, which *200resulted in Ms injury, the defendant is chargeable with the consequences; and, in support of that proposition, reference is made to McGovern v. Railroad Co., 123 N. Y. 280, 25 N. E. 373, and McCampbell v. Steamship Co., 69 Hun, 131, 23 N. Y. Supp. 477. In the former of these cases the plaintiff’s intestate, having been directed to do so by the defendant’s superintendent, went into a grain elevator, to clean it out, upon the assumption that the grain had been discharged from it. While he was there, some of the grain, w'hich had become heated, thus rendered cohesive, and adhered to the elevator, came down upon the plaintiff’s intestate, causing his death. The place in which he was directed to perform the work was, for that reason, unsafe; and the court held that inasmuch as, by the exercise of care on the part of the defendant, the condition in that respect may have been ascertained, the question of its negligence was for the jury. In that respect the defendant was clearly chargeable with the direction of its superintendent to the intestate. In the McCampbell Case there was a defective condition or situation of a sMd extending from the defendant’s vessel to the dock, making a slide, on which the plaintiff was employed, and directed by the defendant’s superintendent to remove the cargo from the ship by means of a truck. In the attempt to do this, the plaintiff, by reason of the defective connection of the skid with the dock, was injured. And it was held that the place where he was put to do the work was unsafe, and the danger one which he did not assume. It may be observed that those places were unsafe, and the conditions which made them so were not produced in the progress of the work in which the injured employés were engaged, and not a detail of their service in its performance. And although Patterson was the alter ego of the defendant, in the present case, in doing whatever that relation required, his grade in the service of the defendant was dependent upon that in wMch, for the time being, he was engaged. When, therefore, he was at work with the others, at the time in question, he was a coemployé; and his contribution, by his acts and direction, in the details of the work, were not those of the master, or for which the latter was responsible to those who were engaged there with him in its performance. Crispen v. Babbitt, 81 N. Y. 516; Cullen v. Norton, 126 N. Y. 1, 26 N. E. 905. If these views are correct, it follows that to whatever negligence the injury to the plaintiff may have been attributable, it was that of the coemployés, or some one or more of them, and was within the hazards assumed by Mm in the service.

With a view, as is said, of showing that the foreman was incompetent for the position assigned to him, a witness was, by the plaintiff’s counsel, asked, “Did you observe his manner of doing work?” The evidence was excluded, and exception was taken. It may be that the ruling was made upon the ground that no such defense was alleged in the answer, as that was a specific ground of the objection; but, however that may be, the man Schoenfilder was, in this work, and at the time in question, acting in the capacity of a coemployé, merely; and there was no purpose, indicated in the evidence offered, to prove anything affecting his condition, character, or habits, which rendered him unfit for service, or prejudicial to his relation *201as such coemployé. It therefore seems that, without reference to the question, of pleading, the plaintiff was not prejudiced by' the exclusion of the evidence. No other question requires consideration. The order should be affirmed. All concur.