I am unable to. concur in the-conclusion reached by a majority of the court. Conceding the plaintiff’s contention, that the accident occurred by reason of the defendant’s foreman refusing to permit the use of a stronger and better rope than had been previously employed, I do not think this is sufficient to charge the master with negligence where he has provided, as is conceded in this case, an abundance of proper rope. In the first place, to concede the plaintiff’s version is to admit that his fellow-employees had notice of the defect in the rope; it was as obvious to them as to any one, and it was their' negligence which was directly the cause of the accident. *71Knowing the danger of using a defective rope in work of this character, they had no right to rely upon the direction of the foreman, and it cannot be presumed that the master had delegated to him any power to direct his colaborers to do that which was unlawful, or to unnecessarily expose the men to dangers. The fact that the master had supplied an abundance of good rope raises the presumption that it was intended to be used whenever that became necessary in the carrying on of the work, and the mere fact that a foreman did not think it necessary to change ropes does not impose a liability upon the master for the negligence of the plaintiffs fellow-servants in making use of an improper rope, when a proper one was furnished for their use. If the plaintiff had, himself, made use of the rope, knowing that it was unfit for the use, he could not charge the master with liability, because the risk being known and obvious he would be deemed to have accepted the risk, and it is difficult to understand .how the master can be made liable for the known negligence of fellow-employees. Employees are not slaves; they are not called upon to assume unnecessary dangers, even at the direction of a master, and it is only in those cases where the master is presumed to have better knowledge of the situation than his employee, that a direction from him to do an obviously dangerous thing is held to carry liability for results. (McGovern v. Central Vermont R. R. Co., 123 N. Y. 280.) In the case of this rope it was, if the plaintiff’s version is accepted, obviously unfit for the work to be done; this fact was apparent to the plaintiff’s fellow-laborers, and yet they - went on using the rope, in disregard of their duty to a fellow-employee, and the master is sought to be charged with the liability because of the alleged refusal of the defendant’s foreman to permit the use of a different rope.
The plaintiff seeks to support the judgment upon the theory that the defendant’s foreman in charge of the particular job was the alter ego of the master, and that his refusal of a proper appliance was the refusal of the master. In support of this contention Brickner v. New York Central R. R. Co. (2 Lans. 506; affd., 49 N. Y. 672) is largely relied upon by the respondent, and particularly the clause where it is said that “ when by appointment of the master, he exercises the executive duties of master, as in the employment of servants, in the selection for adoption of the machinery, apparatus, *72tools, structures, appliances and means suitable and proper for the use of other and subordinate servants, then his acts are executive acts, are the acts of a master,” etc. There is no doubt that this language expresses the law upon the point under consideration in the Brickner case, but it has no bearing upon the facts of this case," for it is not, shown that the defendant had vested any such general executive authority in its foreman for this particular work. The evidence shows that the defendant had discharged these duties of employing servants, of selecting the machinery, apparatus, tools, structures, etc., and there is no suggestion that it had been negligent in any of these particulars. It had placed a foreman over the-men in the particular work of constructing this bridge, but there is-no suggestion that it had delegated or attempted to delegate the power, of determining the particular materials which should be used out of those furnished for the purpose, and there is certainly nothing in. the case to show that the defendant had authorized its foreman to order or direct, that he or his-fellow-laborers should be negligent, with a knowledge of the facts before thém. The rule is well established that the servant assumes the ordinary risks of the service in which he is engaged, or which he may discover by the use of reasonable'care, as;well as the risk of injury from the negligence of competent fellow-servants. (Quigley v. Levering, 167 N. Y. 58, 63, and authorities there cited.) The use of the ropes furnished is not the work of the master, but of a servant, and it may, therefore, be, delegated to a competent person without negligence, and the fact that the plaintiffs fellow-servants, under more or less compulsion, from another fellow-servant, consented to make use of a rope known to-them to be dangerous, where the master had supplied plenty of good rope, cannot make the defendant liable. - It was distinctly the negligence of the plaintiff’s fellow-servants which' caused the accident, under the version of it which was submitted to the jury, and. the foreman was not in the discharge of any duty which belonged, to the master in whatever directions he may have given in respect-to a detail of the work. (Quigley v. Levering, supra, 65, citing authorities.)
The judgment appealed from should be reversed.
Judgment and order affirmed, with- costs.