Michael Kennedy, Appellant, v. Allentown Foundry and Machine Works, Respondent

Michael Kennedy, Appellant, v. Allentown Foundry and Machine Works, Respondent. Negligence—an employee in a trench, injured by apipe therein being pulled through the wall of a building by direction of a ao-employee—an obvious risk. An employee of a contracting corporation, who, in the absence of its superintendent, stands upon the bank of a trench giving directions concerning the placing, of a piece of pipe through the foundation wall of a building, is a co-employee of a person whom he directs to go into the trench and place a block under the end of the pipe, and the latter cannot recover damages from the corporation-for injuries sustained by him while he was in the trench, in consequence of the negligence of the supervising employee in directing the men inside the. building to pull the rope attached to the pipe. The danger to which the employee in the trench was exposed was both known and obvious, and he had as good an opportunity as the supervising employee-to know what, results were to be anticipated from, the pulling of the rope and the moving of the pipe. Appeal by the plaintiff, Michael Kennedy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 29th day of June, 1899, upon the dismissal of the complaint by direction of the court after a trial before thé court and a jury at the Kings County Trial Term.. James C. Churoh, for the appellant. John M. Ward, for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: The defendant, a foreign corporation, was engaged in completing-a piece of contract work in the borough of Brooklyn which necessitated the laying.of iron pipes in a trench. The plaintiff was engaged in helping to lay these pipes. The work was nearly completed ; the last section of pipe, which was to extend through the foundation wall of a building, was being put -into place.' A rope was attached to the pipe and laborers inside of the building were to pull upon this rope when those outside were ready. The superintendent of the work was not present, but an employee of the corporation known as “Johnny” was upon the bank of the trench giving directions, and the plaintiff was directed to go down into the trench to place a block under the end of the pipe when it was lowered to prevent it from sinking into the earth. Two other employees were in the trench, but for what purpose the evidence does not disclose. When all were ready, “Johnny” called “go ahead,” and the rope was pulled; the pipe was moved and swung around in such a manner as to strike the plaintiff’s legs, causing the injury which is the foundation of this action. The complaint was dismissed at the close of plaintiff's evidence, upon the ground that the plaintiff had failed to prove the cause of action alleged in the complaint; “ that they have failed to prove the negligence of the defendant; that they have failed to prove freedom from the contributory negligence on the part of the plaintiff, and especially upon the ground that any injury shown here is the result of the negligence of a co-employee. Under the New York rule, this man Johnny, taking then1 own version of it, was not the alter ego of the defendant in this case.” The defendant owed the plaintiff the duty of providing a reasonably safe place in which to work; proper appliances to work with, and to exercise reasonable care in selecting and employing workmen who were to labor with the plaintiff. (Perry v. Rogers, 157 N. Y. 251.) There is no evidence in this case that the defendant failed in the discharge of any of these duties, and it does not appear that the man Johnny was engaged in the performance of any duty Avhich belonged to the master. He was merely doing his part of the work in putting this particular piece of pipe into position, and the accident resulted from the negligence — if negligence it was — of co-employees, for which the master cannot be held liable under the law of this State. More than this, the dangers to which the plaintiff was exposed in this work were both known and obvious ; lie had as good an opportunity to know what results were to be ■anticipated from the pulling of the rope and the moving of the p>ipe as Johnny, and he cannot recover in this action. The judgment appealed from should be affirmed. All concurred, except Hiesohbebg, J., not sitting. Judgment affirmed, with costs.