(dissenting):
The accident occurred by the outward swing of ropes, attached to a tank which was being hoisted into a building, striking part of a scaffolding which had been used in the erection of the building into which the tank was being hoisted. This scaffolding had been erected about the front of the building for masons to stand on while repairing walls which had been damaged by fire, and consisted of certain uprights, across which were placed poles lashed to the uprights with ropes. Timbers, called foot rests, were set loosely in the wall. Loose planks were placed upon the foot rests upon which the masons stood while repairing the injured walls. The object for which the scaffold was erected had been accomplished — the masons’ work was done. The defendant undertook to hoist a tank weighing about five tons into the building through a window or archway, which latter was obstructed by the scaffold. It became necessary to make some change in the scaffolding in preparing the place for the men to work, and the foreman in charge had caused to be removed the loose planks upon a part of the scaffold, but left loose planks upon the other part under which the fall for hoisting the tank was led out. To hoist the tank, the foreman rigged a derrick with blocks and fall and secured it by -guys. Preparations being thus advanced, the foreman, requiring more help, sent for plaintiff, who was employed at another place, and ordered him to assist in hoisting, indicating the place where he was to work, which was under that part of the scaffold from which the loose 'planks had not been removed. As the tank was lifted from the ground it canted outwards, and the outward swing of the ropes struck the foot rests of the scaffolding, detached them from their placej and these with the loose planks fell a distance of nearly twenty feet, one of the planks striking the plaintiff upon the head and causing him severe and serious injuries.
*437It is conceded that the manner in which the foreman undertook to raise the tank was negligent, and if a recovery were sought on that ground solely 1 would concur with Mr. Justice Ingbaham that tiie cases of Cullen v. Norton (126 N. Y. 5); Hogan v. Smith (125 id. 774), and McCamphell v. Cunard S. Co. (144 id. 552), would be controlling, because where, as in those cases, the injury occurs by reason of the negligence of a co-servant, -though one of a higher grade than the one injured, in performing a duty arising during the progress of the work and which was included as a detail in the performance of the work itself, for such an injury the master is not liable. Where the very nature of the employment and of the work is dangerous, and that apparently so to the person accepting the same, he assumes all the risks. That as I view it was the reason and principle involved in the Norton case. But the opinion recognizes the well-settled rule of law that “ a master is bound to furnish reasonably safe and suitable implements for the use of the servant and a reasonably safe place of employment, considering the nature of the employment itself.”
At the outset then it is necessary to determine what was the proximate cause of the injury. Was it the negligence of defendant in failing to furnish plaintiff with a safe or proper place in which to do his work, for which defendant would be liable, or was it the negligence of a fellow-servant in hoisting the tank for which defendant would not be liable? Upon the evidence the answer involved a mixed question of law and fact, which under proper instructions by the court was left to the jury. And their verdict cannot be said to be without evidence to sustain it, because it appears that the accident could not have happened as it did, however careful or negligent the foreman may have been in hoisting the tank, if the scaffold or even the loose planks had been removed.
Apart, therefore, from the question as to the negligence of the foreman in failing to adopt proper precautions in the details of the work of hoisting the tank, the discussion here narrow’s down to whether the place in which the plaintiff was set to work was a safe and proper place. If it was not, the defendant cannot escape liability upon the theory that the duty of providing a safe place was delegated to the foreman, who is to be regarded as a co-servant, and that for the latter’s failure the defendant is not liable, because the rule is *438too well settled to be disturbed, that where an employee is injured by the negligent performance of an act of duty which the master as such is required to perform, the master is liable, although the negligence is that of a fellow-servant to whom the performance of the duty was intrusted, and this irrespective of the rank of the person guilty of negligence. (Hankins v. N. Y., L. E. &, W. R. R. Co., 112 N. Y. 116; Stuber v. McEntee, Id. 201; Benzing v. Steinway & Sons, 101 id. 517 ; Pantzar v. T. F. M. Co., 99 id. 376; McGovern v. C. V. R. R. Co., 123 id. 287.)
The evidence shows that the danger to be apprehended from attempting to lift the tank with a derrick was known to the foreman, who in the selection of a safe place was acting for the master, and the suggestion was made that before lifting the tank, the scaffolding, or at least the loose planks thereon, should be removed. And while the planks immediately in front of the opening or archway through which the tank was to be hoisted were removed, the foreman rejected the suggestion as to the removal of the scaffolding or the remainder of the planks. The plaintiff, on the other hand, had no knowledge of the conditions of the place in which he was put to work, which was immediately beneath a structure which, in connection with the hoisting of the tank and the reasonable probability that the ropes or some portion of the tank while in process of hoisting might come in contact with the scaffolding, cannot, as a matter of law, be regarded as a safe place.
I think, therefore, that in selecting for the plaintiff the place in which he was to work the foreman was performing a duty delegated to him by the master, for which, in the event of negligence, the latter would be responsible; and, upon the evidence here, I think it was properly submitted to the jury as a question of fact whether such place was a reasonably safe and proper place, and the jury having resolved this question against the defendant, their verdict should not be disturbed.
I, therefore, dissent from the majority and think the judgment should be affirmed, with costs.
Judgment reversed, new trial ordered, costs to appellant to abide event.