Hussey v. Coger — 21 N.Y. St. Rep. 848

Majority

p. 848

Mary Jane Hussey as Administratrix, etc., Resp’t, v. John J. Coger, App’lt.^[1]

(Court of Appeals,

Filed March 5, 1889.)

Headnote

1. Master and servant—When superintendent stands in place of MASTER IN RESPECT TO PERSONS EMPLOYED.

The defendant was a carpenter and contractor, and had entered into a contract with the owners of a steamship to make certain repairs on the vessel. He had employed for the performance of the work a superintendent, to whom he gave charge of the job, with authority to engage alt workmen under him necessary to perform the contract, and to whom lie-delegated the discharge of all those duties which, in the conduct of such, work, rested upon him to perform in respect to the persons employed thereon. Held, that the superintendent stood in the place of the master to the persons employed in the work.

3. Same—When master not liable por negligence.

Held, that a superintendent, notwithstanding his general supervisory power, is still a servant, for who/-.o carelessness and negligence in the discharge of a duty as such servant the master is not responsible to co-servants.

3. Same—Liability op master por negligence op co-servant.

The plaintiff's intestate, at the time of the accident, was engaged in the hold in repairing a bulkhead. The superintendent stood on the spar or upper deck, and had occasion to cause a water tank to be let down from the main deck into the hold. In order to do this it was necessary to remove the hatch over the hatchway, and his assistants were ordered on this service. While performing the work the hatch slipped from their grasp and, falling into the hold, struck the intestate, who it appeared had left the place where he was at work, and had'advanced under the hatchway to procure some nails from a keg which had been placed there. Several witnesses testified that prior to removing the hatch notice was given to persons below by calling to' them to stand from under; other witnesses testified that they did not hear the caution: Held, that the duty of giving the caution and the mode of execution of the work rested upon those engaged in its performance, and the master having furnished abundant and competent help, and having done all that was required of him, was exempt from liability for injuries to an employee resulting from an accident occurring in the ordinary and usual mode of prosecuting work arising from the carelessness or negligence of fellow workmen.

Appeal from judgment of supreme court, general term, first department, affirming judgment in favor of the-plaintiff.

Charles W. Dayton, for app’lt; Frank F. Blackwell, for resp’t.

This action was instituted by a servant of the defendant to recover damages for an injury received in the course of his employment. After a verdict the servant died and the action was revived by his administratrix, who> was substituted as plaintiff to defend an appeal.

While there was much controversy on the trial as to some of the collateral facts of the case, there was none as to the controlling circumstances which, in our judgment, determine the non-liability of the defendant. We are of the

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opinion that there was no evidence upon which a charge of negligence can justly be imputed to the defendant. The-claim of liability is based upon the alleged negligence of the defendant in the performance of some duty which he,, as master, owed to those in his employ and_ which resulted, in the accident from which the servant received his injury. The defendant was a carpenter and contractor engaged in the business of altering and repairing the interior of vessels lying in the port of Hew York for whosoever might need his services. He had entered into contract with the owners to make repairs upon. the Wyoming, an ocean steamer, employed, among other things, in the transportation of fresh meat, and needing alterations in the hold to> accommodate the traffic in which she was engaged. The-defendant had employed for the performance of the work a. superintendent who had general charge of the job and authority to engage all workmen under him, necessary to perform the contract. The plaintiff’s intestate was a ship-joiner and was one of the men so employed.

The defendant exercised no personal supervision over the work, but devolved its whole management and control upon the superintendent, who was authorized to employ and discharge workmen; to regulate and direct the manner of their work; to provide the means and appliances necessary to its prosecution, and determine the time and place of its; performance. The superintendent was employed by the master as his servant; but was delegated with the discharge of all those duties which, in the conduct of such work, rested upon the master to perform in respect to the persons employed thereon. So far as this action is concerned, he may, therefore, be regarded as standing in the place of master to the persons employed in the work. Corcoran v. Holbrook, 59 N. Y., 520 ; Pantzar v. Tilly Foster Mining Co., 99 id., 373.

It is not, however, every act of a superintendent for which a master is liable, for, notwithstanding his general supervisory power he is still a servant and in respect to such work as properly belongs to a servant to do, is, while-performing it, discharging the duty of a servant for whose negligence and carelessness the master is not responsible to-co-servants. Crispin v. Babbitt, 81 N. Y., 516 .

It was said in the Crispin Case that “ the liability of the master does not depend upon the grade or rank of the employee whose negligence causes the injury. A superintendent of a factory, although having power to' employ men, or represent the master in other respects, is, in the management of the machinery, a fellow servant of the other operatives. * * * The liability of the master is thus made to depend upon the character of the act in the performance of which the injury arises, without regard to the

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rank of the employee performing it. If it is one pertaining to the duty the master owes to his servants, he is responsible to them for the manner of its performance. 'The converse of the proposition necessarily follows. If the •act is one which pertains only to the duty of an operative, the employee performing it.is a mere servant, and the master, although liable to strangers, is not liable to a fellow -servant for its improper performance.” In that case while the plaintiff was engaged in lifting the fly-wheel of an •engine off its center, the superintendent carelessly let the steam on and started the wheel, throwing the plaintiff on to the gearing wheels, and thus occasioned the injuries ■complained of.

There is no question in this case but that the superintendent employed was a fit and competent person to have charge of the work to be done, or but that he was a skillful and experienced workman; and the sole question in the case is, whether the special work in which he was engaged -at the. time of the accident belonged to the class which pertained to the duty of a master to perform, or not.

In considering this question, it is not necessary to limit or restrict the rules defining the general duties and obligations of masters, engaged in mechanical employments, to their servants; for, under the broadest definition laid down in the authorities, we think the respondent fails to bring this case within the rule imposing liability upon masters.

The case of Pantzar v. Tilly Foster Mining Co. (supra) is referred to by the respondent as sustaining the recovery, and the question may, therefore, be tested by the rule there laid down without doing injustice to the plaintiff. It was there said that ‘£ the master owes the duty to his ■servant of furnishing adequate and suitable tools and implements for his use, a safe and proper place in which to promote his work, and, when they are needed, the employment of skillful and competent workmen to direct his labor and ássist in the performance of his duties.” In that case the servant had been assigned to labor under an overhanging ledge in a mine, which had become disintegrated and .cracked, to the knowledge of the master, and threatened to fall upon and injure those working beneath it.

We held that the master was charged with the duty of -exercising care and prudence in the protection of his servants from the known and inherent dangers of the situation, •and having failed to perform that duty, was liable to his ■servants for an injury arising from an omission to do so. The proof in this Case does not show that the master omitted tlie performance of any such duty. He had provided a ■skilled and competent man to superintend and direct the work; a sufficient force, with all necessary and proper

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means and appliances, to perform it, and a safe place, free from any inherent dangers, in which to carry it on. He was not chargeable with the consequences of a place for work made dangerous only by the carelessness and neglect of fellow servants, or for the negligent manner in which they used the tools or materials furnished to them for their work.

The plaintiff’s intestate at the time of the accident was engaged in the hold of the vessel, repairing a bulkhead situated near the hatchway. Three decks extended above him, having corresponding openings, constituting hatchways, and were ordinarily covered by hatches; but, when uncovered, presented an open space some twelve or fifteen feet square reaching from the hold, where the plaintiff’s intestate was employed, through all of the decks to the spar deck, some twenty-five feet above him. This vessel was; 'constructed in the usual and ordinary mode of such steamers and there was nothing about the arrangement of the hatchways, their appliances, or the various decks of the vessel, which presented any danger, if used in their usual and customary manner, to those employed about them. Upon the occasion in question, the superintendent stood on the-spar deck, near the hatchway J and had occasion to cause a. water tank to be let down from the main deck to the hold.. In order to do this it was necessary to uncover the hatchway on the main deck. He directed the foreman of the men in the hold to send up assistants to do this work and two men viz., Holbrook and Torrey, were sent on this service. The men usually worked in pairs and Torrey was Holbrook’s assistant.

These hatches were quite heavy, and the work of removing them was considered dangerous,.and two men were invariable employed in its performance. The hatches consisted of thick plank about six feet long and two and a half broad, and having holes cut in the corners at the respective-ends, diagonally opposite, to enable the men handlingthem to secure a firm hold. When Holbrook and Torrey arrived at the hatchway they advanced on opposite sides towards, it, and Bouse, another employee, had also approached it on. the side opposite Holbrook in a position to assist him, when the superintendent called out to Holbrook, and said “ Holbrook, take off that hatch.” Holbrook thereupon seized one end of the hatch, and, supposing either Bouse or Torrey had hold of the other end, lifted it up and pulled the opposite end from its resting place. Torrey and Bouse, each waiting for the other, did not in fact get hold of the hatch,, or, if they did, they let go and it went through the hatchway, twisting itself by its weight out of Holbrook’s hands,, and, after striking the steerage deck, bounded off and feÉ

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into the hold, striking the plaintiff’s intestate on the leg, breaking it in several places. It appeared that the decedent left the place where he was at work, and comparatively •safe, and had advanced under the hatchway to obtain some nails, to use in his work, from a keg placed there by some one, but by whom does not appear. While thus engaged, he was struck by the hatch.

There is no reasonable ground for claiming that Gray, by •calling upon Holbrook to remove the hatches, intended that he should do so alone, or to exclude others, whom be had called there expressly to assist in the work, from co-operating with him. Holbrook and Torrey both understood that they were both required to remove the hatches; and would have co-operated but for the fortuitous presence of Rouse, in the place where he stood. It was a usual and customary practice for men engaged in the work of removing hatches on shipboard, to give notice to persons below, by calling out to them to stand from under, or similar words, importing a caution to such persons. This custom was known to all of the persons engaged in removing the hatches, and, as testified to by several witnesses, in various parts of the vessel, was complied with on this occasion. Other witnesses, however among whom was plaintiff’s intestate, testified that they did not hear the caution.

Assuming that this evidence presented a question of fact for the jury, and that it might properly find that no signal was given, yet the duty of giving the caution necessarily belonged to those engaged in executing the work, and not to the master. It pertained purely to the mode of execution and rested upon those who were engaged in its performance, and were well informed of the customary usage in respect thereto. It was no part of the duty of the master to remove hatches or direct the particular mode of ■doing so, any more than to direct workmen in the use of the tools with which they performed their work. There were customary and established modes of performing such services, and each employee was expected to do his work in the manner and style to which he was accustomed, without .special directions in respect thereto. It was entirely immaterial whether the superintendent undertook to perform the work of removing hatches or ordered it to be done by ■others; he was in either case engaged in performing the duty of a workman. The master had furnished abundant ■ help to do the work and had done all that was required of him, and it was the fault of the servants that a sufficient number did not co-operate to perform it safely, or do it in the manner prescribed by custom.

It would be extending the liability of a master beyond any established rule to require him to oversee and supervise

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the execution and detail of all mechanical work carried on under his employment, and there is no rule of law which authorizes it. The risks arising to employees, from the negligence and carelessness of fellow-workmen, are incident to the service in all mechanical employments, and must be borne by the servant, and even with this limitation the field of the master’s liability is sufficiently broad to impose upon him most onerous obligations in the conduct of industrial enterprises. He is not the insurer of the lives .and safety of those in his employ, and after he has performed the duties which the law enjoins upon him, is ■exempt from liability fat injuries arising from accidents occurring in the ordinary and usual mode of prosecuting work.

The judgments of the courts below should be reversed and a new trial ordered, with costs to abide the event.

All concur.