Maguire v. Barrett

• Citation: 119 N.E. 79,223 N.Y. 49
• Parties: MAGUIRE v. BARRETT.
• Decision Date: 26 February 1918
• Court: New York Court of Appeals

223 N.Y. 49

119 N.E. 79

MAGUIRE

v.BARRETT.

Court of Appeals of New York.

Feb. 26, 1918.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Joseph Maguire against William M. Barrett, as President of the Adams Express Company, a joint-stock association. Judgment for plaintiff, and defendant appealed. Reversed by the Appellate Division (168 App. Div. 836,154 N. Y. Supp. 468), from which plaintiff appeals. Judgment of Appellate Division reversed, and new trial granted.

Robert J. Culhane, of New York City, for appellant.

Edward V. Conwell, of New York City, for respondent.

CRANE, J.

If there be evidence in this case creating a question of fact for the jury, the Appellate Division was in error in dismissing the complaint. In our opinion, there is such a question of fact.

The plaintiff was in the defendant's employ as the driver of one of its wagons, and was injured on the evening of February 25, 1913, on the delivery platform at Lexington avenue and Forty-Ninth street, Manhattan, New York. This platform was used by the defendant for receiving and sorting freight. It was inclosed, and ran from Forty-Ninth to Fiftieth street, 100 feet or more, being part of the new Grand Central Terminal. The structure was of concrete and iron, supported by iron pillars, which ran through the concrete platform. The various pieces of freight were placed on this platform by the drivers and helpers of the express company and by outside truckmen and shippers. This freight was being constantly moved about from one place to another, sorted and put on trucks, and taken by the elevators to the train level for shipment.

After the plaintiff had finished unloading his wagon and was going to register his time at the time booth, he was injured by a heavy iron casting falling over upon him. This casting was about 3 feet 6 inches high, 6 inches thick, 1 1/2 feet wide, and weighed about 600 pounds. It had been left leaning almost perpendicular, or upright, against one of the iron pillars of the platform, and not more than 3 feet from where the plaintiff had unloaded his wagon. Taking the evidence most favorable to the plaintiff, as we must do (Eastland v. Clarke, 165 N. Y. 420, 59 N. E. 202,70 L. R. A. 751), the bottom of this iron casting was about 2 inches from the foot of the pillar against which it was leaning.

No negligence can be predicated upon the placing of this casting, for no one knows who placed it in this position, and no liability arises from the happening itself. The negligence, if any, rests in the knowledge of the foreman that this heavy iron was so placed as to be dangerous and liable to topple over, and his failure to remedy the condition.

Foremen were in charge of this platform. John Hart and Dan Hart were such foremen on the evening in question, and had charge of the south end and middle of the platform. These foremen directed the drivers where to place their freight, and instructed other employes on the platform how to dispose of it after it was unloaded. Louis Neal, a driver, testified that he had noticed this iron standing alongside of the pillar as he was unloading his wagon at the platform a half hour before the accident. Pointing to a man in the courtroom, who was Dan Hart, he said:

‘I spoke to the foreman there, when I was backing in with my van, that it was dangerous.’

This action was brought under the Employers' Liability Act, which makes the defendant liable for the negligence of the foreman.

[1][2] In brief, we have this evidence: The defendant maintained a large platform to which its drivers brought freight for shipment. Foremen in charge of the platform gave instructions where and how to place it, and when and how to remove it. Employes, under the control of these foremen, were moving about constantly on this platform. An iron casting, weighing about 600 pounds, was placed upright alongside a column, so far off the angle as to indicate the possibility and likelihood of its falling over. The foreman's attention was called to the danger. He paid no attention and did nothing. One-half hour thereafter, without intervening cause, the iron toppled over on an employe going about his usual work.

Can it be said as matter of law that this foreman exercised the reasonable care which the circumstances called for? The Appellate Division has answered in the affirmative. We think, however, that these facts, if true, presented a question for the jury to pass upon; the question being whether under such circumstances the foreman exercised the care and supervision which a reasonably prudent man charged with similar duties would have used. ‘If it is necessary to determine, as in most cases it is, what a man of ordinary care and prudence would be likely to do under the circumstances proven, this, involving as it generally must, more or less of conjecture, can only be settled by a jury.’ Eastland v. Clarke, 165 N. Y. 420, 426,59 N. E. 202, 204 . ‘While it is true that the master is not liable to one servant for the negligence of another, when he conducts the work in a proper manner and prescribes proper rules for its performance, yet when he knows that one set of servants have so negligently done their work as to occasion danger to a fellow servant, it is his duty to interpose and take reasonable means to see that the rules are complied with, the work properly done and the danger removed.’ Henry v. Hudson & M. R. R. Co., 201 N. Y. 140, 142,94 N. E. 623. It is the duty of the master to use reasonable care to so conduct his business as not to subject servants to unnecessary danger in the prosecution of their work. O'Brien v. Buffalo Furnace Co., 183 N. Y. 317, 321,76 N. E. 161. The negligence of the foreman, Dan Hart, in this case would be the negligence of the defendant. Famborille v. Atlantic, Gulf & Pacific Co., 155 App. Div. 833, 140 N. Y. Supp. 529, affirmed 213 N. Y. 666, 107 N. E. 1077.

That a reasonably careful foreman, considering the use of this platform by so many workmen and the lifting and moving of so many packages, would have heeded the notice given by Neal, and have removed the iron or pulled it out further at the base, and thus prevented an accident, would not be an unwarranted or unreasonable conclusion. The evidence at least submits to this inference, and where the circumstances are such that men of ordinary prudence and discretion might differ as to the character of the acts, the question of negligence is generally for the jury. Rounds v. D., L. & W. R. R. Co., 64 N. Y. 129, 21 Am. Rep. 597;Sharp v. Erie R. R. Co., 184 N. Y. 100, 104,76 N. E. 923,6 Ann. Cas. 250.

[3] In the opinion below it was said:

‘If it be assumed that the attention of the foreman was, prior to the accident, called to the dangerous position...