Anthony Spencer, Respondent, v. The State of New York, Appellant

Anthony Spencer, Respondent, v. The State of New York, Appellant. Third Department, January 8, 1906. Negligence —injury by plank thrown from. State bridge — when State liable for negligence of volunteer. The plaintiff, while employed in cutting a channel in a stone coping at the end of a State lift bridge over the Erie canal, was struck and injured by a plank thrown from the bridge. The bridge was lifted to its full height, about fifteen feet above the surface of the dock, and in that position the old planking of the, bridge was being replaced by new under the direction of a foreman employed by the State. The plank was thrown by the bridgetender, an employee of the State, who was not at the time in the discharge of his duties, but who., with the permission of said foreman, had taken the plank for his own use as firewood. Held, that as the act of the bridgetender- was in aid of the work of the foreman in removing the old plank and done with the acquiescence of the foreman, the State was liable for the negligence, although that of a volunteer. Appeal by the defendant, The State of New York,, from a judgment of the Court of Claims of the State of New York in favor of the plaintiff, entered in- the office of the clerk of said court on the 18th day of April, 1905. The claimant, a stonecutter, was on the 2d day of June, 1903, in the employ of Carson Brothers, a firm of stone contractors and dealersfin the city of Rochester. At about ten o’clock in the forenoon of that day he was sent with another stonecutter in the employ of said firm to the lift bridge over the Erie canal at Exchange street in the city,of. Rochester to deepen the channels in the stone coping at the end of said bridge so that deeper rails might be laid therein for the street railroad crossing that bridge. There was in progress at that time at' said bridge the work of replacing the old flooring, which formed the roadway, with new. This work was being done by certain servants and agents of the State and the foreman of the gang was one 'Dougherty. At the commencement of said work in the morning, by the orders of Dougherty, the bridge had been lifted to its’full height, which was about fifteen feet above the surface of the street, and remained there suspended all day. The work which claimant and his companion were doing was on the coping on the southerly bank of the canal on the easterly of the two . tracks, the bridge crossing the canal at right, angles and consequently running north and south. The old plankingTiad,' as it was torn, up during the day, been carried to the southwest corner of the bridge-and thrown off onto the towpath and from there carried away. Hone of it had struck within fifteen feet of claimant and "his companion. About , three fifteen o’clock in the afternoon one Patterson, who had not been there all the preceding part of the day, came on duty; that .being his regular “ trick ” as bridgetender.' As bridgetender he was an employee of the State. Thé duties ofbridgetenders are to operate the bridge and to Warn passengers against falling into the canal whén the bridge is lifted. The bridge being suspended and in process of repair there was nothing for him to' do when he came on duty. About three-forty-five in the afternoon. Patterson came out of his operating-shanty on the bridge for the purpose of procuring some of the old planks for kindling wood for; consumption at his home. He spoke to Dougherty, the foreman, said he wanted some wood, picked up a plank from the middle of the bridge, without either the permission or'refusal óf 'Dougherty^ carried it to the south end of the bridge and threw it over: The plank fell almost perpendicularly and struck the claimant across.the 'shoulders, hip, and back of the neck, knocked him down, striking his chin in the channel he had been, cutting, thereby cutting his chin, loosening some teeth, knocking out one tooth, bruising, his back and rendering him unconscious. He incurred Some physician’s bill and'lost some time from his work. Patterson says he threw over two planks in'all, the second of which struck claimant. The other witnesses on that question say that he threw but one and that one hit the claimant. Patterson was not a member of the gang which was repairing the bridge and had no duties to perform there save to raise and lower the bridge and warn travelers. Defendant . offered no testimony on the question of damages, nor does it make any question as to the amount thereof. ' . Julius .M. Mayer, Attorney-General, and Willis H. Tennant, Deputy Attorney-General, for the appellant. Horace G. Pierce, for the respondent. [MAJORITY — Smith, J.:] Smith, J.: In Althorf v. Wolfe (22 N. Y. 355) the head note in part reads : “ One who directs his servant to remove snow and ice from the roof of his house is responsible for an injury received by a passengér in the street from such snow and ice, whether the negligence was that of the servant or of a stranger, whom he employed, or who volunteered, to assist him.” We agree that this bridgetendér was not in the performance of his regular duties at the time that he performed the negligent act which caused the injury. No liability, therefore, can be imposed upon the State by reason of that relationship. The foreman of the repair gang, however, in the employ of the State, was required to exercise due care that in the making of those repairs no damage should be caused. If one of his servants in removing the plank had thrown it upon the claimant the State would, confessedly^ have been liable. Under the authority cited, if a stranger had been asked to assist in removing the plank, and through his negligent act the injury had been caused, the State would have been liable. The act of the bridgetender, though for his own purposes, was in. aid of the work which the foreman was there to direct. His act was with the acquiescence of the foreman whose duty it was to see that those planks were removed with reasonable care. In our judgment his work should have been directed by the foreman with equal care as the work of those servants who were employed to work under him, and that for his negligence, while he was thus removing the plank with the acquiescence of the foreman in the employ of the State, the State is itself liable. The judgment should, therefore, be affirmed, with costs. All concurred, except Parker, P. J.; and Chester, J., dissenting. Judgment affirmed, with costs.