Opinion
July Term, 1900.
Watson M. Rogers, for the appellant.
Henry Purcell, for the respondent.
It is evident that the jury were given to understand that even if they found that defendant was not guilty of negligence with reference to the manner in which the plant was constructed, or in not having previously provided a drip cock or bleeder for the main steam pipe, that still if the jury found that the superintendent in turning the valve was not acting as a co-servant with decedent, and if his act in turning the valve was the sole cause of the injury, defendant would be liable. This we think was error. In effect the jury were permitted to find against the defendant, even if they believed from the evidence that defendant had discharged its duty of furnishing the decedent a reasonably safe place in which to perform his duties. If the place was safe and was made dangerous only by the acts of the superintendent in opening the valve, plaintiff was entitled to recover under this charge, provided the jury were of opinion that the superintendent, in opening the valve, represented the master. The legal proposition thus presented is, whether the superintendent while testing machinery or appliances, so represents the master as to make the latter liable to another employee injured directly and immediately by the superintendent's negligent act. It is, of course, well settled that it is the duty of a master to furnish reasonably safe tools, machinery and appliances to his servants and to inspect the same from time to time. The person furnishing the tools, machinery and appliances, and the employee who inspects the same, in so doing performs a duty which devolves upon the master, and for his negligence the master is liable to a servant to whom the tool, machinery or appliance is subsequently delivered for use, and who, owing to such negligence, is subsequently injured thereby. It is also the duty of the master to exercise reasonable care to furnish a safe place for his employees to work, and whoever furnishes the completed place represents the master. We are not, however, prepared to hold that the master is liable for the negligent act of a foreman or superintendent in inspecting or repairing machinery, tools or appliances, or in the work of making a place safe for his employees, where such negligent act results in direct, immediate injury to another servant, while the work of inspection or repairing or making the place safe is in progress. We are of opinion that the act of the superintendent, in opening this valve, was the act of a co-servant and not of the defendant, and as the evidence is undisputed, the jury should have been so instructed as matter of law. ( Murphy v. Boston Albany R.R. Co., 88 N.Y. 146; Bell v. Consolidated Gas Co., 36 App. Div. 243; McCosker v. Long Island R.R. Co., 84 N.Y. 77; Cullen v. Norton, 126 id. 1; Beilfus v. N.Y., L.E. W.R. Co., 29 Hun, 556; Hussey v. Coger, 112 N.Y. 614; Kimmer v. Weber, 151 id. 419; Vitto v. Keogan, 15 App. Div. 329; Crispin v. Babbitt, 81 N.Y. 516.) It does not, however, follow that plaintiff cannot recover. If the master was negligent in not furnishing a reasonably safe place or in constructing the plant negligently, and such negligence co-operated with the negligence of the superintendent in turning the valve, the master would be liable.
These exceptions present reversible errors and require a new trial, with costs to appellant to abide the event.
ADAMS, P.J., concurred; McLENNAN and WILLIAMS, JJ., concurred in result; SPRING, J., dissented.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.