Benzing v. Steinway

• Decision Date: 02 March 1886
• Citation: 101 N.Y. 547,5 N.E. 449
• Parties: BENZING v. STEINWAY and others.
• Court: New York Court of Appeals Court of Appeals

101 N.Y. 547

5 N.E. 449

BENZING

v.STEINWAY and others.

Court of Appeals of New York.

Filed March 2, 1886.

Appeal from a judgment of general term of the court of common pleas in and for the city and county of New York, affirming a judgment of the trial term, dismissing plaintiff's complaint.

Wm. H. Arnoux, for appellant.

G. W. Cotterill, for respondent.

RUGER, C. J.

The evidence of the circumstances surrounding the accident, and the prior use of the platform occasioning the same, is quite meager and unsatisfactory; but, standing unexplained, was quite sufficient to carry the question of plaintiff's contributory negligence to the jury. He was unexpectedly called from his work, in another part of the factory, to assist in putting up girders to support a roof in course of erection over the boiler-room. This duty was not in the line of his general employment, and his evidence shows that he had no previous knowledge of the status of the work, or of the appliances used in its prosecution. A platform, consisting of five pine boards painted red, and being one inch thick, fastened together by two hard-wood cleats attached to the boards with screws, and forming a flooring about four feet six inches wide, (the length is not shown,) was placed in such a position as to be supported by the wall on one side, and an iron beam three feet therefrom on the other, and extending over a vault about 11 feet deep. It was raining on the day of the accident, and when the plaintiff appeared in the yard, about on a level with the platform, he was ordered by the foreman to get upon it for the purpose of aiding other servants of the defendant who were then present and ready to proceed in the work of placing the girders in position. The plaintiff asked the foreman if it was safe, and was informed by him that it was.

It is quite evident that the plaintiff had no opportunity to inspect the platform, for the purpose of discovering defects in its material or structure, before going upon it; and even if he had made such examination, it is quite doubtful whether he could have discovered them on account of the painted surface, and the difficulty of inspecting its lower side as it was then situated. He advanced upon it to the side where his services were needed, when the board upon which he stood broke, and precipitated him into the vault below, and a serious injury resulted. This statement of the case does not show, as matter of law, that the plaintiff was chargeable with negligence in obeying the orders of his superior. The complaint was not, however, dismissed at the circuit for that reason, but upon the ground that the evidence did not show the platform to have been furnished by the defendants for the use to which it was put, and that it appeared to be an instrumentality adopted by a fellow-servant without the knowledge or consent of the employer. The neglect, if any, was said to be that of a co-servant, for which the master was held not to be liable. The general term seems to have taken a similar view of the case, and therefore affirmed the judgment. In this we think those courts erred, and that a new trial should be granted.

It has been repeatedly held that the risks of the service which a servant assumes in entering upon the employment of a master are those only which occur after the due performance by the employer of those duties which the law enjoins upon him, and that the negligence of the master, co-operating with that of a servant in producing injury to a co-servant, renders the master liable. Stringham v. Stewart, 100 N. Y. --, S. C. 3 N. E. Rep. 575, and cases cited. It was said by Chief Judge CHURCH in Flike v. Boston & A. R. Co., 53 N. Y. 549, that the true rule ‘is to hold the corporation liable for negligence in respect to such acts and duties as it is required to perform as master, without regard to the rank or title of the agent intrusted with their performance. As to such acts, the agent occupies the place of the corporation, and the latter is liable for the manner in which they are performed.’ Judge RAPALLO states the rule, in Crispin v. Babbitt, 81 N. Y. 521, to be that it depends ‘upon the character of the act in the performance of which the injury arises, without regard to the rank of the...