Charles Carlson, Respondent, v. The United Engineering and Contracting Company, Appellant

Charles Carlson, Respondent, v. The United Engineering and Contracting Company, Appellant. Second Department, May 4, 1906. Negligence -=■ injury by negligent starting of stationary engine —master liable for act of foreman — when contributory negligence for jury. Under the Employers’ Liability Act a master is liable for the act of a foreman superintending repairs to a stationary engine in ordering it to be started while an employee was working in a place of danger. The fact that a general superintendent was employed does not relieve the master from responsibility - for the act of such foreman. When the place where the plaintiff was ordered to work .was not dangerous while the engine was not running, the question of his contributory negligence is for the jury. Extra allowance granted. Appeal by the defendant, The United Engineering and Con-, tracting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 19th day' of April, 1905, upon the verdict of a jury for $2,000, and also from ah order entered in said clerk’s office on the 22d day of April, 1905, denying, the defendant’s motion for a new-trial made upon the minutes. John C. Robinson [Frank Verner Johnson with him on the brief], for the appellant. Charles J. Carroll, for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: This action for negligence is brought under the Employers’ Liability Act (Laws of 1902, chap. 600). The defendant used a stationary engine for hoisting in construction work. The engine was stopped for adjustment of a wire rope running over the drums. The plaintiff when engaged in that work placed his foot in a place dangerous if the’ machinery were moving. "When he was in such position the engine was started and his foot was injured. The theory of the plaintiff is that defendant was negligent because its employee Sapp gate the order to start the engine without warning ■ and before he saw that the plaintiff was in a place-of safety. The evidence justified á finding that Sapp gave the order to start' the engine when .the plaintiff ivas 'about the “repairs and without taking any precaution to see whether the plaintiff, .then engaged in that work, was out of peril'.- It also justified the finding that Sapp was a superintendent within the purview of the said act. For there is testimony that he was the foreman, that he employed the plaintiff, that there -were several gangs of men with foremen, but that Sapp was the foreman of them all, and Sapp himself testifies that he was foreman, and as such his duties -were “ to rig the carpenter^ work and everything that was to be done around' the work; ” and that he took this particular.work in hand.. The engineer also téstifies that •- “ the superintendent was not there taking charge of that particular work that day, he had Mr. Sapp do that.” ’ The' mere fact that there was a general superintendent did “ not .relieve the defendant' from responsibility ”, for the acts of Sapp. (See McBride v. New York Tunnel Co., 101 App. Div. 448, 450, 453.) I- think that the act of Sapp in directing the engineer to start the engine was one of. superintendence. As foreman he took personal charge of the- repair and adjustment of this machinery, and .gave orders and directions to that. end. The direction to start the engine after the stop of two hours for'the. repairs and adjustmeht under his charge was not like unto a direction for that purpose given in the course of its ordinary intermittent working, a mere detail of the jv-ork, but rather a direction in the course of his superintendence -of its adjustment and repair. It was liis duty, in the course of such superintendence, before he directed that • the engine- should be started, to exercise reasonable care to seehliat the workmen engaged in the labor -of repair or adjustment were in places- of .safety. (McHugh V. Manhattan R. Co., 179 N. Y. 378 ; McBride v. New York Tunnel Co., supra.) - The'question of contributory negligence was for the jury. There . is testimony-that, in order to. do a (part of the work ordered, the plaintiff was compelled to stand in the.place where he was injured: There is no evidence that the place was dangerous when the engine was not running. And the engine had been stopped in order that this work of the plaintiff and others might be done in safety. . I see no reason why the extra allowance should not he granted in this "case. I advise affirmance of the judgment and order, with costs. Present — Hirschberg, P. J., concurring in result, Woodward, Jenks, Hooker and Miller, JJ. Judgment and order unanimously affirmed, with costs.