From the conceded facts in this case it is very clear that the place which the defendant furnished to the plaintiff, in which to sit and run her sewing machine, was in all respects a safe one, except in so far as the pile of goods which Harks placed behind her rendered it unsafe.
And the only negligence that can be charged, as the cause of her injury, is the erection of that pile at the place and in the manner in which Harks placed and erected it.
It seems equally clear that Harks, in the work of so placing and erecting that pile, was a fellow-servant of the plaintiff — indeed the trial judge so charged, without exception on the part of the plaintiff — and unless there is something in this case to except it from the general rule, this defendant is not liable for an injury resulting therefrom.
As a general rule, the master is not responsible to a servant for an injury caused by the negligent manner in which a co-servant performs his work. (Keenan v. New York, Lake Erie & Western R. R. Co., 145 N. Y. 190, 196; Sherman v. Rochester & Syracuse R. R. Co., 17 id. 153.)
*398At the time of this accident Harks was employed to bring the goods and pile them in some convenient place, from which the girlsr at work at that table could easily procure them. It was a very simple matter. There seems to have been ample space in the rear of the plaintiff’s seat for a pile to have been erected so' far behind her that in no event could it hit her if it did fall over. And also,, it is very evident that it was by no means necessary to build the’ pile as high as' six or seven feet. There was' abundant space to-build it wider on the bottom and thus diminish its height. Every means was afforded Harks to have so placed that pile that he would have fully accomplished the purpose of his work and at the same-time have avoided any possible injury to • others. A change of a. foot or two in its location, or a slight increase in its length and. breadth, would have made it safe beyond all apprehension. With every facility at his hand- to perform so simple a duty in a safe» manner, there was no reason why the defendant should apprehend any damage from its performance. Hence it cannot be fairly claimed that the defendant has violated the rule that requires th& master to furnish a reasonably safe place in which to perform his-work. Clearly the place was perfectly safe had not Harks carelessly and in utter disregard of the conveniences which the defendant had furnished, made it unsafe. To such a -condition that rule> does not' apply. (Bailey v. Delaware & Hudson Canal Co., 27 App. Div. 305; Hogan v. Smith, 125 N. Y. 771; Cullen v. Norton, 126 id. 1; Perry v. Rogers, 157 id. 251.)
Upon this question the trial judge charged as follows: “ If you; find that * * * the defendant did not furnish a reasonably safe place for the plaintiff to work in, that this cloth, this pile of’ cloth, piled as it was, rendered her position at the machine unsafe, or not a reasonably safe one, and that through this failure on the part .of the defendant, the Wayside Knitting Company, and through, no negligence on the part of the plaintiff, this pile of cloth fell; upon and injured plaintiff, then I charge you that plaintiff can recover against the defendant in this action,” etc. To this charge* the defendant excepted.
The following requests to-charge were also made by the defendant : '“ That Harks was not the alter ego of the defendant in respect: to any work done by him as shown in this case.” Also, “ If the; *399plaintiff was injured, not by reason of the failure of defendant to provide her with a reasonably safe place to work, but by reason of the manner in which Marks piled up these goods, the verdict must be for the defendant.” Each of these requests the court refused to-charge and the defendant excepted.
Eeading these instructions and requests together, it is clear that the court instructed the jury that if the erection of the pile rendered the plaintiff’s position at the machine unsafe, it was negligence on the part of defendant for which she could recover.
So the case has been decided upon one of two theories — either-that the defendant is liable for the negligent act of Marks in performing his work as a co-servant of the plaintiff, or else that the defendant is liable for not furnishing a reasonably safe place for the plaintiff to work in, although such place was made unsafe solely-through the careless act of a co-servant, and his negligent omission to avail himself of the means furnished him by. the defendant for doing his work in a different and absolutely safe manner. Evidently, tinder the' cases above cited, neither of these theories is correct; and hence error has been committed, for which a new trial must be granted.
For this reason, we need not consider the plaintiff’s claim that the defendant is liable because, having notice that its work was being done in a reckless and dangerous manner, it made no precautionary rules restraining the same. Whether it had such notice, and whether the work was so being done, were questions not submitted to the jury and upon which it has never passed. Although we need not pass upon those questions now, it may be well to say that in this record we find no evidence sustaining either proposition. But the case was sent to the jury entirely upon the theories above stated; and inasmuch as we deem them erroneous, we must for that reason reverse this judgment.
Judgment reversed on the law and the facts and a new trial granted, costs to abide the event.
All concurred.
Judgment and order reversed on the law and facts and new trial granted, with costs to appellant to abide event.