Opinion
December 10, 1909.
Frederick N. Van Zandt, for the appellant.
G. Glenn Worden [ Frank V. Johnson with him on the brief], for the respondents.
The plaintiff was in the employ of the defendants, and was injured under the following circumstances: The defendants were engaged in doing the structural ironwork on a building at the corner of Flushing and Kent avenues in the borough of Brooklyn. The plaintiff was an experienced workman, had been employed as an ironworker for about ten years, had seen derricks moved and booms shifted, and understood and knew just how the work should be done. Charles Smith was defendants' superintendent. Albert Erdt was what is known as a "pusher." Smith gave instructions as to how the work was to be done and Erdt's duty was to see that his instructions were carried out, and he assisted in the performance of the work. The derrick upon which plaintiff was injured was supported by three guy ropes in the rear, one on either side and one in front. The boom was so long in relation to the mast that when it was necessary to shift it from one side of the work to the other it would not pass under the guy rope in front, and it became necessary to loosen this and pass it under the boom and bring it up on the other side. Smith told Erdt in the presence of all of the men of the gang, including the plaintiff, to take the guy rope from the derrick on the front side and swing the boom around. He particularly instructed him to fasten the boom down before taking the guys off. This was deemed necessary because if the boom was not fastened and the strain of the guy in front were taken from the derrick, the guys at the back of the mast pulling upon it were likely to overthrow it. After these instructions had been given Smith went away. The front guy rope was loosened, but the boom was not fastened to anything as he directed that it should be. In consequence of that the derrick fell over backward and the plaintiff was hurt. The action was brought under the Employers' Liability Act. The learned trial judge sustained an objection to the admission in evidence of the notice given under the said act on the ground that it was insufficient for failing to state the cause of the injury. If he was in error in this respect, and the notice should have been admitted, no different result would follow. Erdt was not a superintendent nor exercising an act of superintendence at the time the derrick fell. Fastening down the boom was a mere detail of the work. ( Gallagher v. Newman, 190 N.Y. 444; Cashman v. Chase, 156 Mass. 342; Flynn v. Boston Electric Light Co., 171 id. 395; Joseph v. George C. Whitney Co., 177 id. 176.) Toward the close of the case the plaintiff raised the question that irrespective of the provisions of the Employers' Liability Act, a common-law action was made out for failure on the part of the defendants to provide competent fellow-servants. No such ground of negligence was specifically set forth in the complaint, but there was an allegation to the effect that the plaintiff was "ordered to the top of the boom of said derrick for the purpose of assisting in changing the front guy rope of said derrick from one side of the boom to the other; that while plaintiff was at the top of said mast assisting in changing said front guy rope from one side of the boom to the other, said derrick fell and plaintiff was precipitated to the floor of the building." There is a further allegation that "the fall of said derrick * * * was due solely to the negligence of the defendants." This complaint was amplified by a bill of particulars which, among other things, specified that the derrick was not properly secured while said operation was going on and that defendants employed incompetent servants to perform the said work. If, therefore, there was any evidence to sustain a charge of negligence for employing incompetent servants, or if such evidence was offered and erroneously excluded, it would be error which would require a reversal of the judgment of nonsuit in this case. It appeared that, a few days before, the same derrick had fallen, and that at that time Erdt, the pusher of the gang, was present. There was some evidence that on the day of the previous accident the rigging of the guy ropes was somewhat different, so far as the front of the derrick was concerned. A witness was asked this question: "On the occasion of the first accident, just before the fall of the derrick, what did you see Mr. Erdt do?" This was objected to, the objection was sustained and an exception taken. Another witness, who testified that he was present about a week before, when the derrick fell over, was asked whether the guy ropes were fastened on the day of the first accident. This was objected to and the objection sustained. He was also asked on the occasion when the derrick fell the first time: "What did you see, or did you see Mr. Erdt doing anything just before the derrick fell?" That was objected to, the objection was sustained and an exception taken. He was then asked this question: "Was the boom loosened; was the support of the boom to the derrick removed just before the first accident by anybody?" There was the same objection, the same ruling and an exception. At the close of the case the plaintiff asked to go to the jury on the question of the negligence of the master in employing an incompetent fellow-servant. Although it does not clearly appear from this evidence that any act or omission of Erdt was responsible for the fall of the derrick on the first occasion, we think that the plaintiff should have been permitted to show all the circumstances connected with the happening of that accident. Even if it appeared that on that occasion it was Erdt's duty to fasten the boom down before loosening the guy ropes, that he omitted to do so, and that in consequence thereof the derrick fell, this would not necessarily establish his incompetency. "An individual who by years of faithful service has shown himself trustworthy, vigilant and competent, is not disqualified for further employment, and proved either incompetent or careless and not trustworthy, by a single mistake or act of forgetfulness and omission to exercise the highest degree of caution and presence of mind. The fact would only show what must be true of every human being, that the individual was capable of an act of negligence, forgetfulness or error of judgment." ( Baulec v. New York Harlem R.R. Co., 59 N.Y. 356, 363; Cameron v. N.Y.C. H.R.R.R. Co., 77 Hun, 519; revd. upon another point, 145 N.Y. 400.) We express no opinion as to the question whether a single act of negligence upon Erdt's part would be sufficient to establish his incompetency. It may depend somewhat upon the character of the act. We think that in this case all of the testimony regarding the circumstances surrounding the happening of the previous accident should have been admitted in evidence, and it would then have become a question of fact for the jury, or it may be of law for the court, to determine whether such evidence established such incompetency.
We think that the judgment of nonsuit in this case should be reversed and a new trial granted, costs to abide the event.
WOODWARD, JENKS, RICH and MILLER, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event.