Tendrup v. John Stephenson Co. , 58 N.Y. Sup. Ct. 462 ( 1889 )

Beady, J.

It will be perceived on reading the opinion of Baetlett, J., infra, that the act of removing the stairway was one authorized by the defendants ; the negligence of the so-called fellow-workman being his leaving the stairway without a guard or notice, and without being fastened, while he was seeking the means of finishing his work of removal. This makes a vast difference between this case and that of Crispin v. Babbitt, 81 N. Y. 516, to which Justice Baetlett refers. There the injury was occasioned by an act with which the master had no connection, directly or indirectly, and was one of carelessness. The fellow-workman carelessly let on steam, and the plaintiff was injured. “The true rule, I apprehend,»” said Chuech, C. J., “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 agents occupy the place of the corporation, and the latter is liable for the manner in which they are performed. ” Here it appears that Jebliek, the fellow-workman, had been ordered by the defendant’s foreman to put a machine in position, to do which it was necessary to remove the stairs. They were removed, and hence the accident, for the reason that they were not secured, of which the plaintiff was ignorant. The distinctions made by the cases bearing upon the obligations and responsibilities of employers for the carelessness of one fellow-workl man, resulting in the injury of another in the same common employment, are somewhat shadowy, and therefore difficult of application; but where the act causing the injury is an independent one, and done by order of the employer, or his alter ego, as in this case, the liability of the employer seems to be settled, particularly when it is within the principle that he owes his servant the duty of furnishing him a safe and proper place to prosecute his work. Pantzar v. Mining Co., 99 N. Y. 368, 2 N. E. Rep. 24. In addition to this, it may be said that the case of Stone Co. v. Kraft, 31 Ohio St. 287, and quoted by Eabl, J., in his dissenting opinion in Crispin v. Babbitt, supra, exactly hits this case. Indeed, that opinion will be found sustained by authorities the doctrines of which make the defendants here liable for the plaintiff’s injuries. I am decidedly in favor of the affirmance of the judgment.

Daniels, J., concurs.