Daley v. Brown

Smith, J.:

In the final decision of the case the court properly-held that the defendants’ liability must rest upon their failure to provide and properly promulgate rules for the guidance of their employees. The direct cause, of this accident was the shunting of this engine towards the derrick. This was caused by knocking out the brace while the engine was subject to the pull of the weight of the boom which had not been lowered. If the failure to lower the boom before knocking out this brace was the negligence either of Thompson or Finnegan alone, it cannot support this action. Their part in the readjustment of this engine was, so far, a detail of the work as to be the part of a fellow-servant. In thus directing they did not represent, the master. So, also, the failure to inform the servant of the danger of his position could not be imputable to the master, because the place of danger was one made dangerous by the negligence of a fellow-servant.

The theory of the trial court, however, upon which this judgment was directed, was that the defendants had failed to fulfill a duty which they owed to the plaintiff in failing properly to promulgate rules which were reasonably necessary for the safety of their employees. The court has held that in the prosecution of this work, the defendants should properly have made a rule which should require employees to lower the boom upon the derrick whenever the engine was in any way moved; that such a rule should have been promulgated to those in charge of'‘the work and under whose directions the engines were to be moved; that Finnegan was the foreman of the work and the superintendent under whose charge this engine was adjusted; that such rule was not communicated to Finnegan, and that the failure properly to promulgate this rule was the cause of the injury for which the defendants have been made liable.

The defendants contend, first, that this was not a case in which a rule was required; second, that there is nó evidence that the rule ■ Was not communicated to Finnegan; third, that Finnegan was not in charge of the work, and that the promulgation of such rule to the engineer was sufficient.

First. It will not be contended that the master' is in all cases required to promulgate a rule which, if obeyed, will protect the servant. Such a requirement would be unreasonable, and would require the master to anticipate all possible accidents to his employees. We apprehend that the general duty of a master is to use reasonable care to avoid, accidents that may reasonably be anticipated. This is the test upon which his liability is based for an injury from defective machinery or from a failure to provide a safe place to work. In determining whether an accident might reasonably have been .anticipated from a failure to promulgate a rule it is important to •consider the nature of the work, the frequency or infrequency of a situation which would call for the application of the rule, the nature •of the cause of the accident — was it one which a foreman in the •exercise of ordinary prudence would be expected to. guard against without any rule ?

In the case at bar, however, the defendants would seem to have ■foreclosed these considerations. They themselves have made a rule tó provide against this class of accidents. ' It further appears that -other contractors have made a similar rule. These facts are some •evidence of its necessity — sufficient, we think, to authorize the sub.mission of this question to the determination of the- jury.

/Second. It was assumed upon the trial that this rule was not communicated to Finnegan, the foreman. While there is no evidence of •that fact, all of the defendants were upon the stand, and the plaintiff is entitled to what inference may be drawn from the fact that' they gave no evidence that .the rule was communicated to the foreman, while it was explicitly shown that it was communicated to the -engineer. The defendants were silent while these specific questions were submitted to the jury and upon the decision of the court then .announced, which assumed the fact that such rules were not communicated to Finnegan, the defendants made no suggestion of a ■want of proof, which, if then made, could in the discretion of the •court have been supplied. Under these circumstances, thfe defendants cannot now be heard to say that the case was lacking in this proof. (Todd v. Nelson, 109 N. Y. 324.)

Third. The third contention of the defendants presents a more •difficult question. We think the jury was authorized to find that in the general work, including the readjustment of this engine, the ■engineer was under the orders of the foreman, Finnegan. Finnegan had control of the men. They were subject to his orders whether they were at work in the ditch or in the moving of the engine. The boom was raised or lowered by the engineer at his direction or at the -direction of one of his men. The engine was one of the instruments for the accomplishment of the work which he was supervising. If .the raising or lowering of this, hoom were an act which .called for the service of the engineér alone, our impressions would -be clear that the promulgation of this rule to the engineer only would be required. But this the engineer could not do alone.. When the boom was lowered it was required to be supported. This required the assistance of the foreman, and his direction. At folio 360. the engineer swears: “ I was running the engine. I couldn’t lower that boom without I sent three or four men out there to put blocks under the boom, that is, when it laid on the ground. I couldn’t have lowered the end of it and let it rest on the car. The object of putting the blocks under the boom was to prevent its springing out of shape*, as it was such a long b.oonr. You see the way them wings was out on the sides of it; you ¡had, to- have it level.”. It will thus be seen that the lowering of the- boom must have been done under the charge of Finnegan, who provided the men to place the supports. This-fact is emphasized by what actually occurred, to wit, a suggestion by the engineer that the boom be lowered, and the neglect of the foreman to have it lowered; Under these circumstances we cannot say, as a matter of law, that the promulgation of this rale to the engineer was enough. " The jury might well have said that had the foreman, known of- this requirement, this accident would have been prevented. The conclusion we reach, therefore, is that the case was properly submitted to the jury, and we find no reason for disturbing: the judgment which was- directed thereupon.

All concurred/ except Adams, J., dissenting.

Judgment and order affirmed, with costs.