Hess v. Bernheimer & Swartz, Pilsener Brewing Co.

• Decision Date: 28 December 1916
• Parties: HESS v. BERNHEIMER & SWARTZ, PILSENER BREWING CO. et al.
• Court: New York Court of Appeals Court of Appeals

219 N.Y. 415

114 N.E. 808

HESS

v.BERNHEIMER & SWARTZ, PILSENER BREWING CO. et al.

Court of Appeals of New York.

Dec. 28, 1916.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Frederick Hess, as administrator of the goods, chattels, and credits of Charles Hess, deceased, against Bernheimer & Swartz, Pilsener Brewing Company, impleaded with Theodore J. Lutz and Dehls & Stein. From a judgment of the Appellate Division (167 App. Div. 846,153 N. Y. Supp. 327), affirming a judgment of the Trial Term entered on verdict of a jury for plaintiff, defendant appeals. Judgment reversed, and new trial granted.

Frank V. Johnson, of New York City, for appellant.

M. L. Malevinsky, of New York City, for respondent.

POUND, J.

The action is to recover damages sustained by the next of kin of Charles Hess. It is alleged, and the evidence establishes, that Hess died as the result of inhaling fumes of methyl alcohol while he was working for a contractor, defendant Lutz, who was engaged in varnishing beer vats in appellant's brewery. The negligence alleged in the complaint is that appellant ordered, directed, and required the plaintiff's intestate to work in the vat without sufficient ventilation and without proper warning. Proper regard for the safety of the workmen required the use of blowers to carry off the poisonous vapors arising from the varnish. It was extremely dangerous to life and health for men to work under the existing conditions unless such blowers were used to purify the air.

[1] On the trial and in the Appellate Courts plaintiff's reliance was placed on a provision of section 200 of the Labor Law (Consol. Laws, c. 31, as amended by Laws 1910, c. 352, § 1) which reads as follows:

‘If an employer enters into a contract, written or verbal, with an independent contractor to do part of such employer's work, * * * such contract * * * shall not bar the liability of the employer for the injuries to the employés of such contractor * * * caused by any defect in the condition of the ways, works, machinery, or plant, if they are the property of the employer or are furnishedby him, and if such defect arose, or had not been discovered or remedied, through the negligence of the employer. * * *’

‘The duty of the owner to the employé of the contractor is the duty owed by an employer to his own employé in such a case.’ Sullivan v. New Bedford Gas & Edison Light Co., 190 Mass. 288, 76 N. E. 1048;Crimmins v. Booth, 202 Mass. 17, 88 N. E. 449,132 Am. St. Rep. 468;Pettingill v. William Porter & Son, 219 Mass. 347, 107 N. E. 269.

The duty at common law was, inter alia, to furnish a safe place to work. Coughtry v. Globe Woolen Co., 56 N. Y. 124, 15 Am. Rep. 387. This duty has been extended by statute (Labor Law, § 200, subd. 1) to include the tools and appliances without which the place to work would be incomplete. ‘A plant is defective when any part of it is not in a proper condition for the purpose for which it was intended, and it is also defective when it is so incomplete that the use of the plant is dangerous by reason of the failure to furnish reasonably necessary parts for the purpose for which it is used.’ Wiley v. Solvay Process Co., 215 N. Y. 591, 109 N. E. 608. But the statute refers to the employer's plant, and not to the contractor's equipment. If the appellant had done this work by its own employés, it would have been its duty to use reasonable care in providing suitable appliances to carry the fumes of the varnish from the vat in which the workmen were engaged. McGovern v. Central Vt. R. R. Co., 123 N. Y. 280-288, 25 N. E. 373. It cannot be said, however, that the duty of the employer is, by this provision of the statute, extended to supervision of the method of doing the work by the contractor, or that the employer thereby becomes responsible for the negligence of the contractor in failing to furnish proper appliances therefor. While the employer must exercise reasonable care to have his own plant safe for the employés of the contractor, he does not stand in the shoes of the contractor, and become liable for the latter's negligence. If the employer furnishes a ladder or a scaffold for the contractor's employes to work on,...