The plaintiff testified, and in this she was uncontradicted, that she-, had never seen this trap door and did not know of its existence until the accident occurred, so that there was little, if any, evidence tending to establish contributory negligence upon her part, and the jury were instructed that if it could be said that the accident was. attributable solely to the carelessness of the plumbers in omitting toi properly adjust the cover to the opening, the plaintiff must fail in her action, inasmuch as the negligent parties in that event occupied, the relation of co-employees to the plaintiff.
*243This instruction, we think, was manifestly .a correct statement of the law of the case ; for it seems that the mechanics who it is claimed -left the cover in an unsafe condition, although called- “ plumbers,”’ were in the regular service of the defendant, and not, as might naturally be inferred, the servants of another master called in to-perform work of an independent nature.
The jury were further instructed that they might determine-whether or not the place in which the plaintiff was required to perform the’ service rendered by. her ivas, under all the circumstances-of the case, a reasonably safe one, and that if they found it was not,, they were at liberty to return a verdict for the plaintiff even though her injuries were the result of the combined negligence of the defendant and its plumber employees.
This, it is hardly necessary to suggest, is also a correct statement of the law, provided the case furnishes any evidence which will fairly support a verdict based upon the assumption that the defendant failed to perform the duty which the law requires of every master, which is, not to furnish his servants with the best and safest place and appliances in and with which to perform the services required of them, but simply to exercise a proper degree of care in order that they may be reasonably safeguarded in these respects, (Dumes v. Sizer, 3 App. Div. 11.)
In this particular case the only omission of duty charged against the-defendant was the failure to secure' the trap cover to the floor by means of hinges, and it was left to- the jury to say whether such omission constituted negligence within the rule of law applicable-to cases of this description.
In stating this rule, the Court of Appeals has said, in a very recent case, that “ it has not been understood to be the rule in this state-that in the performance of work of this character the master, after making the place in the first instance reasonably safe for the prosecution of the work, has any duty to perform other than in the furnishing of safe appliances and the employment of competent and skillful employees. Under the guise of an application of the rule-requiring a master to furnish a reasonably safe place for his servants to work in, other attempts before this have been made to deprive a defendant of the benefit of another equally well-settled and just rule of the law of negligence, that a party shall not be held responsible *244to a servant for an injury occasioned by the neglect of a competent co-employee.” (Perry v. Rogers, 157 N. Y. 251, 255.)
And this is not the declaration of any new principle, but simply the statement of one which has been frequently enunciated by the same tribunal under differing conditions of fact. (Hussey v. Coger, 112 N. Y. 614; Filbert v. D. & H. C. Co., 121 id. 207; Hogan v. Smith, 125 id. 774; Geoghegan v. Atlas Steamship Co., 146 id. 369.)
Tested by the rule as thus declared, we fail to see how it can be said that the place in which the plaintiff was required to perform her work was unsafe in any sense for which the defendant was responsible.
The cover for the trap was beyond all question so constructed as to withstand the greatest weight which, under any conceivable cir cuinstances, would ever rest upon it, and when adjusted in the manner designed by the defendant, it was not only flush with the floor, but it was a part of the floor and just as firm and safe as any other part. Indeed, it appears that, in such circumstances, it was so firmly and closely fitted to the aperture for which it was constructed that it required some effort to remove it, and this being so, the conclusion is irresistible that but for the failure, of the plumbers to replace the cover in the exact condition in which they found it, the plaintiff, would have escaped the injury which subsequently resulted.
It is possible' that, if the cover had been adjusted by means of hinges, this particular accident would not have occurred ; but even assuming this to be so, it does not" follow. that the defendant’s liability is established, for the fact still remains that, with the means of adjustment which it had furnished, and which, so far as appears, had always ■ theretofore proved sufficient, the place was' both safe and suitable, within the rule cited, and, if so, the verdict of the jury has nothing upon which to rest. (Marsh v. Chickering, 101 N. Y. 396; D'Arcy v. L. I. R. R. Co., 34 App. Div. 275.)
These views necessarily lead to a reversal of the judgment and order appealed from.
All concurred.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide event.