Roach v. Jackson Architectural Iron Works — 14 N.Y. St. Rep. 583

Majority

p. 583

Michael Roach, App’lt, v. Jackson Architectural Iron Works, Resp’t.

(Supreme Court, General Term, Second Department,

Filed February 13, 1888.)

Headnote

Master and servant—Risk assumed by the servant—Liability of MASTER.

An employee takes the risk of the employment upon himself, which includes the risk arising from the negligence of a co-employee. If injury results, no responsibility is then on the master when he fails in some duty which he owes to the employee. The master is liable only for the injuries sustained by an accident arising from his omission to furnish a safe place for work, good and sufficient appliances, and skilled and competent fellow workmen.

The action is for damages, and is brought by an employee against his employer, in this case a corporation, for negligence in not providing a suitable, safe and proper place on or in which to prosecute his work.

On the 5th day of Augdst, 1886, Michael Roach, the plaintiff, was in the employ of the defendant as a day laborer. The defendant was erecting an iron building for Dick & Meyer, in Brooklyn. The gang of men doing the work were under the direction, charge, superintendance and control of a boss or foreman named Yerkes, who employed the plaintiff and who, moreover, employed and discharged the laborers constituting the gang working under him.

The engineering and architectural department was under the general direction of one Lederly, who, at the time of the accident, was directing the architectural and engineering details of at least three buildings in New York and

p. 584

Brooklyn. He went from one building to another to perform his duties. A man named Cooper was secretary o£ the corporation.

On the evening before the day on which the accident occurred, a platform, erected by the defendant for the purpose of placing a derrick to hoist iron columns, showed signs of giving away, so that Yerkes, the foreman, who-was present, ordered the men to quit work and come down from the platform so that it might be repaired by next morning.

This was on August fourth. On the morning of the fifth, when the plaintiff came to his work, he was ordered by Yerkes to mount the platform and hoist the column, Yerkes telling, him that he had fixed it and that it was safe. Yerkes had been warned by a workman that it was still unsafe.

Plaintiff did not hear the warning, and had no means of ascertaining whether the platform was safe or not. He was not a carpenter, and knew nothing of the construction of platforms.

Plaintiff mounted the platform and began to turn the crank to hoist the column, as ordered by Yerkes. When the column was three or four inches from the ground the platform gave way and plaintiff was thrown to the ground and sustained the injuries complained of.

For the purposes of the appeal the negligence of Yerkes is admitted, and the only contention is whether the negligence of Yerkes was the negligence of a fellow servant or the negligence of one standing in the place of the master.

M. L. Towns, for p’lff; Evarts, Choate & Beaman, for resp’t.

The plaintiff made out no cause of action. An employee takes the risk of the employment upon himself, which includes the risk arising from the negligence of a co-employee. Shaw v. Sheldon, 103 N. Y., 667 ; 3 N. Y. State Rep., 679.

If injury results, no responsibility is thrown on the master, unless he fails in some duty which the master owes to-the employee. It is an exception to the rule that the employee assumes all risks of the employment, when the master omits to furnish a safe place for the work of the employment, good and sufficient appliances and skilled and competent fellow workmen. In such cases the master is liable if an accident result from his omission. In the present case there was no omission of the master’s duty. The place was safe. The derrick was strong and sufficient. The material for the staging upon which to place the derrick were entirely safe, but a shoe was put under the plat

p. 585

form not plumb. It was a little too high for the place and it was put in slanting, and when the weight was applied to the derrick it fell. This was done by the foreman or under his directions. When the duty is one which the operator owes to the employer and to his fellow employees, the performance of it is that which the servant owes, whatever his grade. Crispin v. Babbitt, 81 N. Y., 516 ; Shaw v. Sheldon, 103 id., 667; 3 N. Y. State Rep., 679. The case seems to fall within the authority of Neubauer v. Lake Erie, etc., Railroad, 101 N. Y., 607 .

The exceptions should, therefore, be overruled, and judgment ordered upon the verdict for the defendant, with costs.

Dykman, J., concurs; Pratt, J., not sitting.