Falk v. Havemeyer

123 A.D. 657, 108 N.Y.S. 140, 1908 N.Y. App. Div. LEXIS 145

Opinion

Miller, J.:

This action is brought under the Employers’ Liability Act,

Footnotes

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* and the plaintiff has recovered a judgment on the theory that his injuries were caused by the negligence of a person “in the service of the employer, entrusted with and- exercising superintendence, whose sole or principal duty is that of superintendence, or in the absence of such superintendent, of any person acting as superintendent with the authority or consent of such employer.” While several questions are presented by the appellant, we shall only eon sidev -the exception to the ■ denial of the motion to dismiss, which presents the question whether there was any proof that the person whose negligence caused the accident was a superintendent, exercising the duties of superintendence' 'within- the meaning of the statute.

■ The plaintiff was a machinist, and had been in the employ of the defendant -three .years, receiving $100 per month ' One of his duties was to assist in the work of cleaning the sheaves and cables of the elevators in the building in which he was employed. On • the day'in question lie had undertaken to do this-work in company with One Otto Ottsberger, who had been in the- employ of the defendant about a month at $65 .per month- as second assistant to the engineer, but had never assisted- in the cleaning of' the elevator sheaves before. The. plaintiff asserts that.he was told, by the .chief engineer to assist Ottsberger; that he acted under the orders of Ottsberger; that Ottsberger signaled the élevatorman . when to start and to stop, and told the plaintiff when it -was safe for him to proceed with the cleaning; 'that while he was cleaning the sheave, ' after having been- told by Ottsberger that it was safe to do so, the elevator was started and-his fingers’.were caught and the injury complained of was inflicted. Ottsberger was negligent in. .telling, the plaintiff to go ahead with the work without giving a warning to tire man in charge of the elevator. It is not 'pretended, that .Ottsberger’s sole or principal duty was that of superintendence. - He was- a mere employee like the plaintiff. • In fact the defendant asserts that the plaintiff had charge of the work and that Ottsberger was merely his helper. While we adopt the plaintiff’s version in determining the question of law, the defendant’s version is supported by the relative experience of the two men in this' particular work. The case was sent to. the- jury by -the learned trial justice to say whether Ottsberger or the plaintiff was the superior in charge of the work of cleaning the-sheaves, and the jury were instructed that if Ottsberger was the superior,, deputed by the chief engineer to- superintend' the work, they could find that he was a superintendent. We think that upon the plaintiff’s, own showing he and Ottsberger were felloWiservants.; and the mere fact that one' was a helper did not change their relation. Standing guard and giving directions when to proceed with the work were not acts of superin tendence; and even if the superintendent instructed Ottsberger to take charge of this particular work, that instruction did not amount to a delegation of duty. -The superintendence intended by the statute involves more than -the mere authority to give directions to a helper in respect of some limited detail of the work. (McConnell v. Morse I. W. & D. D. Co., 187 N. Y. 341; McLaughlin v. Interurban Street R. Co., 101 App. Div. 134; Quinlan v. Lackawanna Steel Co., 107 id. 176.)

The judgment and order must be reversed.

Woodward, Jenks, G-aynor and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.

Laws of 1902, chap. 600.-—[Rep.