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Wells v. Westinghouse, Church, Kerr & Co.

Supreme Court of New York, Appellate Division

November 24, 1911

FRANK E. WELLS, Respondent,
v.
WESTINGHOUSE, CHURCH, KERR & COMPANY, Appellant.

APPEAL by the defendant, Westinghouse, Church, Kerr & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 9th day of December, 1910, upon the verdict of a jury for $8,000, and also from an order entered in said clerk's office on the 16th day of December, 1910, denying the defendant's motion for a new trial made upon the minutes.

COUNSEL

Page 156

Frank Verner Johnson [Murray G. Jenkins with him on the brief], for the appellant.

W. J. Creamer [John B. Merrill with him on the brief], for the respondent.

BURR, J.:

The judgment and the order denying defendant's motion for a new trial must be reversed. The accident from which plaintiff's injuries resulted was due to an attempt to raise a heavy timber with insufficient appliances; but under the circumstances here disclosed the master is not responsible. At common law, when a master has furnished sufficient and suitable appliances for the prosecution of the work, and, instead of making use of these, a foreman directs the laborers engaged therein to use other appliances, which are unfit and dangerous, the act of the foreman is but a detail in the carrying on of the work, and cannot be imputed to the master so as to impose liability. (Desmond v. Foundation Co., 142 A.D. 537; Vogel v. American Bridge Co., 180 N.Y. 373.) If not conceded, the great weight of the testimony establishes that the proper method by which to raise this heavy timber was to use a gin pole.

William H. Wells, a brother of plaintiff, called as a witness in his behalf, was the foreman in charge of the work. He testified: 'With regard to the gin pole, we had poles about this work at this time.' Another witness called for the plaintiff, who was also a brother, and a fellow-workman, testified: 'There were plenty of poles for gin poles.' The plaintiff at first attempted to show that there was a lack of ropes proper to be used in connection therewith, and the witness William H. Wells at first testified that 'There were no ropes around there that we could get.' But he immediately added, which was the conceded fact: 'We did get them and raised this very pole, after the accident, with a gin pole. They were there to get, only we didn't get it before the accident, but we got it afterwards.' There was some evidence that a hurried search in the storeroom failed to disclose any rope there, but it also appeared that there was an abundance of rope not in use in

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other places about the work, and the witness George Wells, who did obtain the rope after the accident, testified: 'When I got this rope, and got the gin pole, we had no difficulty in raising this post. We probably could have got that rope before, if they give us time. We took time to get it afterwards because we didn't want another accident.'

We think, then, that the evidence utterly fails to establish the want of poles which could be used for gin poles, or ropes which could be used in rigging the same. The fact is that the night before the accident William H. Wells, the foreman, had instructed the workmen to 'get everything ready on the job' of raising the pole, which he intended to do in the morning. When he arrived in the morning the things had not been secured. There was then a hurried search for pike poles with which to raise the timber. There seems to have been some difficulty in finding a sufficient number, and one of the workmen used instead thereof a piece of iron steam pipe. While raising the timber in this way the foot slipped over the mortise intended to secure it, and in attempting to lower the timber the piece of steam pipe slipped therefrom, the timber fell and plaintiff was injured. James Flanagan, one of the workmen, called as a witness by defendant, testified that before starting to do the work he said to the foreman: 'We ought to use the gin pole on raising that, and he said no, the devil, he said, put that thing up there, I want to get that thing into shape because I am pushed for this job, and I want to get finished with it.' Although the foreman was recalled in rebuttal by plaintiff, this testimony was not contradicted nor its accuracy in any way called in question. It is quite clear that the real cause of the accident was the determination of the foreman to use an improper method in raising this pole and in attempting to use insufficient appliances in connection therewith, because it would take a little more time to pursue a proper method and obtain the appliances requisite therefor. Even if there was a deficiency of pike poles, under the circumstances here disclosed the defendant may not be held liable therefor. The master who has provided appliances sufficient to enable work to be done in a proper method is not to be held liable because of a deficiency of appliances which the foreman in pursuing an improper

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method has elected to use. ( Kiernan v. Gutta Percha & Rubber Mfg. Co., 134 A.D. 192; Kern v. De Castro & Donner S. R. Co., 125 N.Y. 50.)

JENKS, P. J., and CARR, J., concurred; HIRSCHBERG, J., read for affirmance, with whom ...


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