Kimmer v. Weber — 59 N.Y. St. Rep. 349

Majority

p. 349

Jacob Kimmer, as Administrator, etc., App’lt, v. John Weber et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed March 16, 1894.)

Headnote

Master and servant — Delegation of duty.

Where the master delegates to his foreman the duty to furnish safe appliances to his servants, he is liable for an injury caused by his foreman’s neglect.

Appeal from a judgment in favor of defendants.

Oscar M Langer {Theo. Avh, of counsel), for app’lt; Wilson & Wallis {Hamilton Wallis, of counsel), for resp’ts.

e think the evidence produced by the plaintiff fairly presented for the jury the question whether the defendants had performed the duty which they, as masters, owed to the plaintiff’s intestate—to furnish a safe and proper place in which, the employe should prosecute this work. On the 16tli day of February, 1891, plaintiff’s intestate, William Kimmer, was an employe of the defendants. The work in which he was engaged was that of pointing up arches with mortar in Koehler’s brewery, in this city. The doing of the work necessitated that he should stand upon scaffolding which was about 12 feet 6 inches above the floor, and within 7 feet 6 inches of the ceiling. While standing upon this scaffold, and engaged in the discharge of his duties, he was precipitated to the floor by the falling of the scaffolding, resulting in death. The evidence tends' to show that the breaking of the scaffold was due to the fact that it was not properly constructed. Indeed, it appears that it was not originally put up for the purpose of sustaining the weight required of it in doing thé mason work in which defendants’ employe was, at the time of its breaking, engaged. This scaffolding had been constructed for the use of plumbers, and when the defendants commenced to do the masonwork they did not strengthen it. Now, the defendants were bound to use all reasonable precautions necessary to make this scaffolding, upon which their employes were invited to stand and work, safe. The defendants, personally, do not appear to have paid any special attention to the construction of the scaffolding. That matter they committed to their foreman, Joseph Turner.. But as it was a duty which the defendants, as masters, owed to their employes, to exercise due diligence to make the scaffolding safe, Turner, in the performance of that duty, stood in the place of the masters. Defendant Weber testified that it was Turner’s duty to see that the scaffolding was properly put up. Turner testified that he gave directions with reference to it to certain employes, other than the masons working upon it. He denies that the scaffolding used was arranged in accordance with the directions given by him, at the same time admitting that he visited the place where the scaffolding was at least twice a day; saw that they were working upon a scaffold other than he had intended to have provided for their use, and allowed them to continue without attempting to stop it. Had the master so conducted himself, it

p. 350

would not be pretended that the court would not be required to permit a jury to say whether he had performed his duty. The situation is not changed when the master intrusts the performance of a duty which he owes to the servant to some one else. In such case, he who performs the master’s duty stands in the master’s place, and his act is the act of the master.

' The judgment should be reversed, with costs to the appellant, to abide the event

All concur.