#### Bade Tamaseric, as Administrator, etc., of Adam Tamaseric, Deceased, Respondent, *v.*Clinton Beckwith, Appellant.

Fourth Department,

May 3, 1911.

Master and servant — negligence — death caused by fall of pipe lowered .on skids — failure to hold pipe with rope — defective method — trial — submission of specific questions — defective tools and appliances — Employers’ Liability Act — sufficiency of notice.

In an action against a master brought under the Employers’ Liability Act to recover damages for the death of a servant, the jury may find that the master was negligent in failing to adopt a proper method for lowering pipes weighing 5,000 pounds each down a hillside having a forty-two per cent grade in order to place them in a trench, where it appears that by the direction of the master’s superintendent the pipes,, being held by a rope wound about a tree; were lowered on two skids connected by a cleat at a point over the center of the ditch and laid upon soft earth, so that when a pipe reached the cleat the skid overturned and the pipe struck a derrick which the servant was erecting to lower it into the trench causing his death, owing to the fact that when the pipe reached the cleat the rope attached to it was allowed to become slack instead of being kept taut so as to support the pipe in case the skid overturned.

Where there is evidence that the “ appliances ” furnished by a master. were improper, a master who has not asked the court to distinguish between “tools” and “appliances” cannot complain because the jury gave a negative answer to the question, Did the master furnish reasonably proper and safe “ tools and appliances,” although there was no evidence that he did not furnish proper tools.

Skids placed across a trench in order to lower heavy pipes down a hillside are “ appliances.” '

Where a notice served under the Employers’ Liability Act specifically informs the master that he will be charged with negligence on the ground-that he employed an improper method of doing work, it is not necessary *79that it state that the improper method was adopted by the master’s superintendent rather than by the master himself. As the superintendent is the *alter ego*of the master, the latter is chargeable with his negligence.

Appeal by the defendant, Clinton Beckwith, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 10th day of May, 1910, upon the verdict of a jury for $2,500, and also from an order entered on the 18 th day of May, 1910, denying the defendant’s mption for a new trial made upon the minutes.

The action was commenced on the 4th day of September, 1909, to recover damages resulting from the death of plaintiff’s intestate, alleged to have been caused solely through.the negligence of the defendant. Recovery is sought under the provisions of the Employers’ Liability Act, so called, and also upon the principles of the common law. (See Laws of 1902, chap. 600; Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14.) ■ •

■ It is urged on behalf of the appellant that the notice served in alleged compliance with the requirements of the Employers’ Liability Act is .insufficient,.and, therefore, that no recovery can be predicated upon the provisions of that act. Also, that the complaint did not allege any cause of action which the evidence ' tended to establish. The appellant also contends that under the Employers’ Liability Act or at common law there was no evidence which tended to prove actionable negligence as against the defendant.

*A. H. Oowie,*for the appellant.

*Clifford H. Searl,*for the respondent.

McLennan', P. J.:

So far as the physical facts are concerned, and the manner in which the work was being done, which resulted in the accident, , there is hardly a controversy. The accident which is the subject of this litigation and which resulted in the death of plaintiff’s intestate occurred on the 22d day of July, 1909. At the time of the accident the deceased, who was' a common *80laborer in defendant’s employ, was engaged with a number of other employees,.constituting whát is called a gang, in laying thirty-inch cast iron pipes, weighing about 5,000 pounds each, in a trench, which pipes when laid in such-trench were to be a part of a system' to convey water from Skaneateles lake to -the city of Syracuse, being done under defendant’s contract, which comprised several miles of such work. One Perkins was' the general superintendent in charge of the workj but the evidence clearly shows that one Reynolds was in charge of the particular job in question and'was acting as superin-, tendent at the time of the accident. It clearly appears that he had authority to direct as to the method of doing the work and that the- deceased and alb the other employees under him were subject to his control and command.

It appears without contradiction that the ditch which had been constructed'by another-gang of laborers was located, upon what may be called a side hill, the pipes to be placed in such ditch being distributed along the top, and the incline from the place where-such pipes were left to the farther edge of the ditch was about forty degrees.

The method employed by defendant’s; superintendent to get these pipes hito.the ditch was substantially'as follows:- Two skids, about fourteen feet long and six inches, square, were-placed over the top of the ditch at ah incline, as we have said, of about forty 'degrees, and extending up the bank toward the place where the pipes wére located. These two skids, so called, placed immediately over, the ditch,; were at each end laid on the surface of the ground; and, as the evidence, tends to show, in soft material. There was a cleat or wedge'nailed on. one of the skids at a point immediately over the center of' the ditch, ■The evidence also tends to show that the skid on which such wedge was nailed was winding or out of true. Such skids being thus placed in position and resting, as we have seen, upon the surface of the ground, or upon' dirt recently thrown out of the trench, defendant’s employees were directed by the superintendent to lower one length ofV pipe from the brqw of the hill. -That, was done as was- the custom by putting ropes around the pipe, taking a half-hitch around a tree, there-being-plenty of them oh the bank, and letting the pipe down'the incline *81and onto the skid until such pipe struck the wedge on one of the skids, which was immediately oyer the center of the ditch. When that point had been reached with the pipe the foreman or superintendent gave orders to the men to let go of the rope, which they did; then plaintiff’s intestate, under the direction of the superintendent, sought to place a four-legged derrick over the pipe, two legs on each side of the trench, it being intended when such derrick was properly placed with a. sling about the pipe to raise it by means of the derrick, take out the skid from under it and'then to lower it to- the bottom , of the trench. While plaintiff’s intestate was thus engaged in placing the derrick, the skid upon which there was a wedge tinned over on its side, leaving the pipe without any wedge to hold it in place, and it went down on the forty-two per cent grade across the ditch, struck the legs of the derrick, one of .the legs of which struck'the plaintiff’s intestate in the chest and caused such injuries that he died shortly thereafter.

First, the claim of the plaintiff is that the defendant adopted a dangerous method of doing the work in question. It is insisted, and at. least two experts testify, that the ropes attached to the length of pipe,- and which were snubbed about the trees upon the bank, should have been kept taut until' such pipe had been made secure to the derrick. The respondent urges that the method of doing the work was improper, because the ropes were loosened before'the pipe was secured to the derrick, and also because it was sought to trust a small wedge upon one of the skids, laid upon the loose earth or ground, to hold the weight of 5,000 pounds in place upon an incline of forty degrees or more.

We think that upon all the evidence upon that branch of the case the jury were justified in finding the questions submitted to them by the learned trial court adversely to the defendant. In other words, were justified in finding that the methods employed, and which were dictated by defendant’s superintendent, were not reasonably safe and proper, but were negligent.

The situation should be perfectly understood. According to the evidence the method employed to do the work in question *82was to place two' skids resting upon loose dirt at either end across the ditch at an incline of at least forty degrees, extending up the hill, then to lower upon such skids a length of pipe weighing about 5,000 pounds, trusting to a wedge naile,d to one of them' to hold it in place until it could he made secure with a derrick, which was to lift it from such skid and then lower it into position in the bottom of the trench. If the ropes had not-been dropped as directed by defendant’s superintendent, there could have been no question hut that the pipe would have been held in position until it had been made- fast to the derrick, and the accident would not have happened. It would almost seem that ordinary common sense would have suggested . that the method adopted was improper and dangerous in the extreme. The only reason suggested why the length of pipe should not have been held in place by the ropes instead of trusting to a wedge nailed to one of the skids,' which rested upon the loose earth and was, therefore, liable to turn and thus' leave the pipe without anything to prevent it froni starting down the incline, is that it would be difficult and dangerous to lift the leg of the derrick over the rope if it had remained taut. We think there is no force in the suggestion.

The learned trial "court also submitted to the jury the question: *“*Did the defendant furnish to his servants on the job in question.reasonably proper and safe tools and appliances to-do the work in an ordinarily safe manner? ” The jury answered such question in the negative.

We think that under the evidence the question was properly answered. While there is no evidence tending to prove that the defendant did not furnish proper tools, we think the evidence does justify the conclusion that he did not furnish proper appliances. But the court was not asked to distinguish as between tools- and appliances, and if the jury could properly have answered that proper appliances were not furnished he cannot complain, because there was no evidence tending to prove that proper tools were’ not so furnished. .

This involves the proposition as to whether f airly the skids laid across the trench in question may be properly considered as an “appliance” within the meaning of the Employers’ Liability Act. If four skids had been laid across such trench, *83and had been used as a means of getting the pipes into the trench, there could be no question but that such would be an “ appliance ” in the same sense that a scaffold has been held to be an appliance.

We think that these two skids which had been habitually placed across the trench in question may properly he regarded as an “appliance.” That they were not proper for the purposes intended we have seen, and the jury were justified upon all the evidence in answering the question as they did.

We conclude, therefore, upon this branch of the case that the method adopted by the defendant under the direction of his superintendent of lowering the pipe into the trench was dangerous and unsafe, and that in adopting such method defendant’s superintendent was guilty of negligence, because of which the defendant is liable for the damage sustained because of the death of the plaintiff’s intestate.

We also conclude that the two skids which were directed by the defendant’s superintendent to he laid across the trench for the purpose of receiving the cast iron, pipe were an “ appliance,” and that under all the circumstances the jury were justified in finding that such appliance was not reasonably proper and safe to do the work in an ordinarily safe manner.

The only remaining question which need he considered is whether the notice claimed to have been served in compliance with provisions of the Employers’ Liability Act was sufficient. Among other things, such notice states that the defendant failed to provide sufficient means for handling said pipe and that he failed to provide and employ and adopt a proper and safe method of work. It would seem that the defendant was specifically informed that it would he sought to charge him with negligence on the ground that an improper ■ method of doing the work in which plaintiff’s intestate was engaged had been adopted. We do not think that it was necessary to state in the notice that the improper method of doing the work had been adopted by the defendant’s superintendent rather than by the defendant himself. The failure'of defendant’s superintendent was defendant’s failure. The superintendent, so far as appears by the evidence in this case — the man in charge of the work and who had absolute *84control of the actions of all of the employees — was the *alter ego*of the defendant and his negligence was defendant’s negligence. (Be*rtolami*v. *United Engineering & C. Co.,*198 N. Y. 71. See, also, *Sienbida v. Tonawanda Board & Paper Co.,*121 App. Div. 70; *Hurley*v. *Olcott,*134 id. 631.)

I conclude that the notice was sufficient. In my opinion it is unnecessary to'consider whether there was any liability established at common law because, as it is claimed, there was a defective skid furnished- for doing the work. .

It follows, therefore, that the judgment and order appealed from be affirmed, with costs.

All concurred; Kruse, J., in a separate memorandum.

Kruse, J.

(concurring):

. I concur upon the ground that upon the evidence the jury could properly find' the defendant negligent respecting the method of doing the work, and in superintending the same. I do not think the -finding of negligence can be sustained in failing to furnish proper tools or appliances, excepting so far as there may have been negligent superintendence in placing the skids and method of doing the work; and while the charge may not be very clear upon that point, that, I think, is the effect of it.

Judgment and order affirmed, with costs.