Timothy A. Hatton, Appellant, v. The Hilton Bridge Construction Company, Respondent

Timothy A. Hatton, Appellant, v. The Hilton Bridge Construction Company, Respondent. Negligence —fall from a scaffold caused by, a rod sustaining it slipping on a girder — duty of the master to provide a safe place and appliance. In an action brought against a construction company to recover damages for personal injuries, it appeared that the president of the construction company, which had a contract to place a skylight in a building, devised plans for the work which provided for a scaffold to be built upon timbers suspended from iron girders, placed at an incline over the “well hole,” by iron rods fastened to the girders by means of iron straps, which were to be prevented from slipping by iron clamps placed around and boltéd to the girders; that the foreman of the construction company, who had charge of the erection of the scaffold, «deemed the clamps supplied for that purpose unnecessary and omitted to place .them in position; and that while the plaintiff, who was a laborer employed by the construction company in the erection of the scaffold, was standing on one ■of the timbers by direction of the foreman, the strap, by which the rod supporting it was fastened to the girder, slipped four feet, causing the plaintiff to fall and receive the injuries in question. /Evidence was also given tending to show that, before the plaintiff went to work «upon the scaffold, all of the rods were -in position save one which he did not :see placed, and that it required mechanical knowledge and skill to determine whether clamps were necessary. Held, that the court erred in dismissing the complaint; 'That the jury might'have found that the defendant’s duty to furnish the plaintiff with a safe place in which to work, and with suitable appliances, required it, not only to furnish the clamps to the foreman, but to see that they were used; and that the failure of the foreman to use them constituted negligence on the part of the defendant; "That the jury might have found that the plaintiff, not having the mechanical skill necessary to appreciate the necessity of clamps, had been exposed to a hidden peril which he did not assume. /Parker, P. J., and Merwin, J., dissented. Appeal by the plaintiff, Timothy A. Hatton, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of .the county- of Albany on the Ith day of December, 1898, upon the dismissal of the complaint by direction of the court after a trial at the Albany Trial Term. The defendant was employed to place a skylight over the Senate ¿taircase in the Capitol at Albany.: It was necessary to build first .a temporary scaffold. Its president, a skilled and experienced engineer, in conjunction with its chief ¡draughtsman, after consultation, devised plans for the preliminary work. These contemplated the suspension of a platform across the opening of the Senate staircase called a “ well hole,” under the place where the skylight was to be built, to be composed of timbers placed at intervals of about ten or twelve feet apart over the open space of the “ well hole; ” plank were to be laid over these timbers so as to make a floor; this structure was to be suspended in place by perpendicular iron rods fastened to the girders or trusses over the top of the “ well hole ” by iron straps. These girders were so placed that their west ends were higher than their opposite ends, forming an incline. There was also devised by the president and the draughtsman a device to prevent the iron strap from slipping on the girder—a clamp formed by two straps of iron, with holes through either end of both straps, through which bolts were to be put, which, by means of nuts, could be screwed tight to the girder. It was intended that these straps should be placed around the girder below the iron straps which supported the rods. The construction and object of these clamps was explained to the foreman in charge of the outside construction. Orders were given to make these clamps, and testimony was introduced by the defendant to the effect that they were, made, one for each rod, and taken to the Capitol and delivered with the rest of the material on the Saturday preceding the accident, and that at the time of the accident they were in the room in the top of the Capitol with the rest of the materials; that one Joseph Austin, the foreman, had charge of the details of the execution of the work in which the defendant was engaged, including the erection of the temporary structure; he was aware of the purpose and use for which these clamps were intended, and he knew they were with the rest of the material when the work commenced. At the time of the accident, all the rods had been hooked in the manner contemplated, except that none of the clamps had been put on; the timbers were all in placeexcept the last one, and they were •pngaged in placing that. Austin testified he did not put the clamps on because he thought it was not necessary; that there was no danger of their slipping down. If these clamps had been on, the accident could not have happened. On Monday, the 17th day of August, 1896, the plaintiff, employed by the defendant as a laborer in the work of erecting the scaffold, by direction of defendant’s foreman, was standing on the timber in. question, when the straps, by which thé iron rod'which supported the timber was attached to the girder, slipped down four feet, throwing the end of the timber on which the plaintiff was standing-around against a parallel timber, and precipitating the plaintiff about forty feet to the floor underneath. He sustained severe injuries, and brought this action tq recover damages therefor. The trial court directed a verdict- in favor of- the defendant, and from the judgment entered thereon, the plaintiff has appealed to this-court. James W. Eaton, for the appellant. Edward W. Douglas, for the respondent. [MAJORITY — Putnam, -J.:] Putnam, -J.: A master owes to 1ns servant thq duty of furnishing a safe place-in which to prosecute his work, and "adequate and suitable tools, implements and appliances therefor, and this duty cannot be delegated to any servant of whatever grade, so as to exempt the master from liability to a servant injured by its non-performance. (Pantzar v. Tilly Foster Iron Mining. Co., 99 N. Y. 368; Laning v. N. Y. C. R. R. Co., 49 id. 521, 532; Corcoran v. Holbrook, 59 id. 517.) In the performance of -this duty;, care and caution to protect the-servant are required óf the master, and a proper inspection, bqth before the work of the servant has commenced, and during its continuance. (McGovern. v. C. V. R. R. Co., 123 N. Y. 280; Buckley v. Port Henry Iron Ore Co., 17 N. Y. St. Repr. 436; 117 N. Y. 645; Benzing v. Steinway & Sons, 101 id. 547; Fuller v. Jewett, 80 id. 46 ; O'Donnell v. East River Gas Co., 91 Hun, 184; Richards v. Hayes, 17 App. Div. 422; Hankins v. N. Y., L. E. & W. R. R. Co., 142 N. Y. 416.) If a servant sustains damages-in consequence of the failure of .the master to perform this duty, the latter is liable therefor. But it is also an established doctrine that, while the master is-liable to a servant who is injured by tlie negligent act of another, if such act-.relates.to the duty the master owes to its servants, yet, if" the act is one pertaining to the duty of an operative, the employee-performing it, no matter what his position or rank, is a fellow-servant, and the master is not liable for his negligent act. (Crispin v. Babbitt, 81 N. Y. 516.) We are called upon, therefore, to determine whether or not it was the business of the defendant, not only to prepare clamps, which, if used, would have prevented the injury to the plaintiff, but also, by a proper inspection of the work, to see that they were properly placed. The plaintiff, at the time of the accident, under the direction of the defendant’s foreman, was standing on a timber suspended by- an iron rod attached to a girder above. The clamp, prepared to prevent the slipping of the rod on the girder, had not been used, and, hence, the appliance or instrumentality to support the scaffold, when the plaintiff commenced work thereon,- was unsuitable and unsafe, and had never been made otherwise. The placing of the rods preceded the work the plaintiff was called upon to perform. He testified that they were all but one affixed to the girder the Saturday before he was called to work on the scaffold, and that one he did not see placed. The evidence permitted a finding by the jury that the plaintiff did not know how the rods were fastened to the girder, that such fastening was insecure, or that clamps had been provided to prevent the rods from slipping, or that they were necessary for that purpose. From the testimony, it is not clear that, although the clamps had been made, they were, at the time of the accident, at the place where the work was being carried on. The • testimony of the defendant’s president, Sweet, and vice-president, Hilton, showed that it required mechanical knowledge and skill, which the plaintiff, a laborer, cannot be deemed to have possessed, to determine whether or not clamps were required. The jury, I think, could have properly found from the evidence, had it been submitted to them, that the defendant did not discharge its wbole duty to its laborers in furnishing clamps to its-foreman, but that such duty required it to place the clamps so that the timber on which the plaintiff was called to work was securely attached to the girder above; that it failed to provide the plaintiff a suitable place in which to perform his work, or safe appliances therefor; that the act of the foreman, Austin, in omitting-to use the clamps, constituted a failure to discharge a duty the defendant owed to the plaintiff, to exercise proper care-to protect him from injury ; that it had a duty of inspection which was not performed. Under the authorities above cited, the duty of exercising care and caution to make the place where the plaintiff was called upon to work —• and to that end a careful and proper inspection thereof—was the duty of the master and not of its serpants. Being a corporation, it was necessary to intrust this duty to a servant. But for the act or omission of the foreman in - that regard, the defendant was responsible. In Manning v. Hogan (78 N. Y. 615, 616), an action to recover damages for the death of the plaintiff’s intestate, caused by the fall of a scaffold claimed to have been negligently constructed, it was said : “ That the question of negligence in building the scaffold was for the jury, that it was not sufficient that there was enough of suitable material provided to build the scaffold. It needed that there should he skill and judgment in the use thereof.” So, in this case, the master was bound not only to furnish proper material for the platform, but to exercise skill, judgment and due care in the- use thereof. This skill, judgment and due care were required of the master. It is claimed that the structure which the plaintiff wa.s at work upon when injured, consisted not only of the timbers on which the floor of the scaffold.was to be placed-, but also the rods to support such timbers; that the defendant, having furnished proper rods and clamps to prevent the same from slipping on the girders above, and proper materials and appliances for the structure, as well as a competent foreman, the placing of the rods and the building of the scaffold was the work of the defendant’s servants; that, although the plaintiff did not aid in affixing the rods to the girders, that work was done by other employees of the defendant engaged in the building of tlie scaffold, and such other employees, including the foreman, must be deemed co-servants of the plaintiff, and, hence, the defendant is not liable for his or their negligence. (Hussey v. Coger, 112 N. Y. 614; Kimmer v. Weber, 151 id. 417; Ulrich v. N. Y. C. & H. R. R. R. Co., 25 App. Div. 465 ; Kennedy v. Jackson Iron Works, 12 Misc. Rep. 336; Cullen v. Norton, 126 N. Y. 1; Butler v. Townsend, Id. 105; Cregan v. Marston, Id. 568.) I do not regard the above authorities, or others relied upon by the learned counsel for the respondent, as analogous in principle to the present one. Those authorities refer to accidents occurring during the progress of the work, where the servant is necessarily aware of the danger; where he knows, or ought to know, as much in regard to the safety of the place where he is called to work, as the master; to cases where the master has performed his duty of furnishing and maintaining a safe place'for the servant to perform his work in, and safe and proper instrumentalities therefor. After that duty has been performed, they determine that, if a servant is injured because of the manner of the performance of. the work, the master is not liable. , It is often difficult, in cases like the one under consideration, to determine the question as to what is the master’s and what the servant’s work. Every case must be judged by its own facts and circumstances. 1 think, under the facts shown on the trial, it was the defendant’s duty as master to make the place where the plaintiff was called upon to work safe; and that, although it delegated that duty to the foreman, it is responsible for his acts or negligent omission of duty in that regard. The defendant was erecting a scaffold, the timbers of which, instead of being supported in the usual manner underneath, were suspended by iron rods attached to curved girders above. On the timbers and scaffold to be placed thereon the defendant’s servants were to be employed. It was the defendant’s duty as master to devise a plan to render the structure safe, and prevent the straps from slipping on the girders. That duty was performed. But it was also its duty, by a careful inspection, to see that the plan was carried out. That duty, although intrusted to its servant, was the master’s and not the servant’s work. The forming of a proper scheme to make the scaffold a safe place for its employees was not the performance of the whole duty the defendant owed its servants. It was bound, also, to see that the appliance prepared to prevent the rods from slipping was used ; that the plan it prepared was adopted and carried out. Again, the jury would have been permitted to find, if the case had been submitted to it, that the danger to which the plaintiff was exposed from the slipping of the straps was a hidden one; that it required mechanical knowledge and skill to determine whether or not clamps were required, which the plaintiff, as a laborer, did not possess; that he did not know that the clamps were prepared or were necessary ; that he was exposed to a secret danger arising from the failure of the defendant to effectuate its plan to render the place on which he was called upon to work safe. The authorities on which the respondent relies do not hold that it is not the duty of the master to protect the servant from such a hidden ’peril, but impliedly a' contrary doctrine. In those cases the master was held not liable, because, in the first instance, he had performed his duty of furnishing a servant with a safe place to work in, arid the injury to tfie servant was caused by the manner of conducting the work, the perils arising therefrom being known to the servant as well as the master. Thus, in Cregan v. Marston (126 N. Y. 568), where the servant was killed by the breaking of a rope attached to a derrick, the master having provided other ropes to be used by the servant when required, Finch, Jl, remarked: “ The workmen, therefore, were left in a position of perfect safety as to the sufficiency of the falls against everything save their own negligence or error of judgment. The rope was swinging before their eyes, and would disclose its approaching weakness on the surface before it became rotten or pulpy within, and they were able to know how long it had been used, and so whether prudence required it to be changed. They were at liberty, and knew they were at liberty, to supplant one which exhibited marks of weakness with another both new and sufficient from the supply kept on hand.” (To the same effect, see Kimmer v. Weber, 151 N. Y. 417, 423 ; Powers v. N. Y., L. E. & W. R. R. Co., 98 id. 274, 280; Shaw v. Sheldon, 103 id. 667, 668; Marsh v. Chickering, 101 id. 396, 399.) Those authorities and others cited by the respondent do not hold that it is not the master’s duty, even during the progress of the work, to guard the servant from risks that are not obvious, that are unknown to him, and which woiuld require mechanical knowledge and skill to detect. The placing of the rods preceded the work the plaintiff was called upon to perform, and he - had the right to assume that they were safely and properly affixed to the girder above; that the master had performed its duty in furnishing a proper support to the timber he whs directed to stand upon. If the views above stated are correct, the questions as to the defendant’s negligence and the contributory negligence on the part of the plaintiff should have been submitted to the jury. It also follows that the plaintiff did not assume the hidden danger arising from the improper affixing of the rods to the girder, and also that the question as. to his contributory negligence was for the jury. The judgment should be reversed and a new trial granted, costs to abide the event. All concurred, except Parker, P. J., and Merwih, J., dissenting. [CONCURRENCE — Landoh, J.:] Landoh, J.: I concur. The master intended to furnish the plaintiff with a safe place in which to labor, and for that purpose furnished its foreman with the proper safety appliances to be used. The foreman failed in the discharge of his trust and did not use the safety appliances, and thus the defendant failed to perform its duty to the plaintiff. The result was just the same as if the defendant had furnished no safety appliances. If the clamp had been used, but imperfectly screwed to its place, that would have been negligence in servant’s work; but not to use it at all was the abandonment on behalf of the master of its known duty. The master gave to its untrustworthy agent the power to leave its duty undone, and he left it undone. Judgment and order reversed and a new trial granted, costs to abide the event.