Anna Agresta, as Administratrix, etc., of Gaetano Agresta, Deceased, Respondent, v. William Stevenson and Alexander G. Carter, Appellants

Anna Agresta, as Administratrix, etc., of Gaetano Agresta, Deceased, Respondent, v. William Stevenson and Alexander G. Carter, Appellants. Second Department, April 27, 1906. Negligence — stevedore drowned by breaking of rope supporting platform— safe place to work — choosing of rope by'foreman is detail work — erroneous charge. In an action to recover for the death of plaintiff’s intestate, who was drowned by-being thrown from a platform on which he was wheeling ballast from a ship to dump into a lighter, through the breaking of the rope which suspended the , platform from the ship, a recovery cannot be sustained when the action is not brought under the Employers’ Liability Act, on the ground that the defendants were bound to furnish a safe place to work, since the act of their foreman in choosing the rope was a mere detail of the work, and for- the negligent choice of a poor rope where good ropes were available the defendants are not liable. A charge that the duty of making such platform a reasonably safe place on which to work could not be delegated; that if delegated, defendants were responsible for any negligence in the performance thereof; that the act of the foreman was that of the master, and should be tested by the same rule requiring reasonable care, necessarily excludes the question of immunity of the defendants from the negligent acts of coservants and is error. Appeal by the defendants, William Stevenson and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rings on the 25th day of June, 1904, upon the verdict of a jury for $2,500, and also from an order entered' in said Clerk’s office on the 7th day of June,. 1904, denying the 'defendants’ motion for a new trial made upon the minutes. ’ ■ ■ „ ' - H. Snowden Marshall [Frederick E. Fishel with, him on the brief], for the appellants. Henry A. Powell [John F. Nelson with him on the brief], for the respondent. [MAJORITY — Hirschberg, P. J.:] Hirschberg, P. J.: This action is brought to( recover damages for the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendants. The defendants were stevedores engaged in the unloading of a steamship in the harbor of blew York. -A . lighter was moored at the side of the vessel, and the defendants at'the time-of the accident were transferring ballast from the steamship to .the lighter." In the performance of the work the ballast was brought up from the hold of the vessel and conveyed upon wheelbarrows, along a skid or platform hung at the vessel’s side between the vessel and the lighter, and dumped by the workmen into the lighter, -The plaintiff,’s intestate was engaged in wheeling one of the- wheelbarrows, and while he Was so occupied one of" the ropes by which the skid was suspended broke, and he was thrown into the water and drowned. The action was not brought under the Employers’ Liability Act (Laws of 1902, chap. 600). The case was submitted, to the jury upon the theory that the skid was a place to work on, in the sense which would make it the duty of the master to render it safe to the ■ extent that he would be responsible for the negligence of the servant to whom the task of preparing it" was delegated. There is evidence which would justify the conclusion' that the work of hanging the skid was in charge of the defendant’s. foreman^ and it may be conceded that a finding of negligence on his part could be supported, by the evidence. It appears that there was plenty of good rope under the foreman’s control, and that if a defective rope was selected it was the. result either of an error, of judgment or of negligence on his part. At the time of the trial the decision of this court in Vogel v. American Bridge Co. (88 App. Div. 68) was the law. It was held there that the foreman, in the circumstances stated, was the alter ego of the master, and that the latter could be held liable for a personal injury sustained by one of his employees in consequence of the breaking of a rope negligently used by such foreman. That case, however, has been recently reversed by the Court of Appeals (180 N. Y. 373), and the logic of the reversal is to the effect that the selection of an unsafe rope, where an adequate and proper supply has been furnished, is a detail of the work, and that neither an error of judgment nor negligence in the selection is sufficient to charge the employer with liability,- notwithstanding the delinquency may be that of a foreman in charge. It is true that in the case at bar the plaintiff’s intestate was working upon the skid when the rope broke, and the skid was literally furnished to him as a place to work upon, while in the Vogel case the rope which broke was used in raising a truss which was being elevated to its place in the structure above the person of the injured workman. The distinction, however, cannot be deemed controlling in view of the decision of the Court of Appeals in McCampbell v. C. S. Co. (144 N. Y. 552). In that case the accident occurred while the plaintiff was unloading a steamer upon a. skid oxtending from the vessel to the dock, and the accident occurred because the “ mouthpiece,” so called, by which the skid was fastened to the dock, was not securely tied. It was held that if the work of securing the skid was improperly done, it was the negligent act of the plaintiff’s coemployees, and that there could be no recovery therefor. To the same effect is Hudson v. Ocean Steamship Co. (110 N. Y. 625). There the plaintiff, while helping to load a vessel, was precipitated into the water by the falling of a skid over which he was carrying freight. The fault which .caused the accident was an omission to have the fastenings of the skid secure, and a dismissal of the complaint was sustained upon the ground that the negligence was that of fellow-servants. The learned trial justice charged the jury in this case that the defendants could not be held liable for an error of judgment of their servant to whom the selection of the rope which broke was committed, but he further charged in substance that the duty of furnishing the skid as a reasonably safe place for the plaintiff’s • intestate to work was a duty of the defendants which they could not delegate to others,. and that if they did so delegate it, and the duty was negligently, performed, the defendants were responsible therefor. He further charged that the act of. the foreman in the premises was the same ás the act of thé master, to be tested by the rulé which en joins the exercise of reasonable- care, and that the jury were to apply that .rule to the act of the foreman the same as they would do if it had been the act of the master personally. This necessarily excluded all question of immunity on the part of ,the defendants 'afforded by the negligence of the coservants of-the plaintiff’s decedent, and under the authorities cited would appear to be error. • The judgment and order must be reversed. Jenks, Hooker, Rich and Miller, JJ., concurred. Judgment, and order reversed and new trial granted, costs to abide the event. ■’