I cannot concur in the decision which the court is making in this case. The learned counsel for the appellant stated on. the argument that his appeal was based on the claim that there should have been a nonsuit, and I do not see how it can be said, in any view of the case, that there was nothing to submit to a jury.
The plaintiff’s recovery is for damages in an action brought at common law against his employer- for personal injuries alleged to have been sustained by reason of the defendant’s negligence. The accident occurred in May, 1905, at the defendant’s plant in the borough of Queens, in the -construction of a coal crusher, the work being in progress under the supervision of the defendant’s Superintendent of carpenters, and the plaintiff was one of a gang of eighteen men engaged in manual labor under the orders and supervision of the superintendent. On the. morning of the accident a platform had been made as a base for the coal crusher structure, about eighteen by twenty feet in size, and upon this foundation the carpenters were about to erect one of the corner posts. . The post was a heavy, waterlogged, eight by. twelve inch, pine timber, eighteen feet in length and weighing about 900 pounds. -The plaintiff had been engaged in other work Upon the premises,' and when called upon by the superintendent to aid in the work of lifting this heavy comer post he knew nothing of the means provided for that purpose. The evidence leayés no room for doubt that the attempt to raise the post was made with insufficient appliances, and that the superintendent was unable ■ to procure proper appliances for the reason that they were not upon the premises. The articles required for the purpose were known as either pike poles of gin poles. They were not to be had. The superintendent himself testified that he looked for some *159and could not find them, and explained their absence by saying that they had been shipped away. Other men were sent for them, but could not find them upon the place, nor could any ropes be found suitable for the work, although men were sent to find them and made unsuccessful search for that purpose. While this evidence is contradicted to some extent, the fact, -remains that there was a conflict and dispute upon this leading question, and the controversy could not be disposed of as a question of law. When the post was partly raised with the insufficient and inadequate appliances .at hand, it fell by reason of their inadequacy, and by the fall caused the injuries of which the plaintiff complains.
The case was submitted to the jury in a charge to which no exception was taken by the defendant, the liability of the defendant being predicated, as stated by the court, upon “one sharp disputed issue, as to whether or not this defendant company did its duty and furnished to the plaintiff adequate, sufficient, and reasonably abundant and suitable tools, appliances or instrumentalities for the doing of; the work that was required of the plaintiff.” It follows that the only question of law presented on the appeal is whether or not the defendant’s motion for a nonsuit should have been granted.
In support of this contention the appellant relies upon the proposition that the attempt to raise the post with the inadequate appliances at hand was the negligence of the superintendent in a mere detail of the work, and, therefore, the negligence of a fellow-servant. The case of Vogel v. American Bridge Co. (180 N. Y. 373) is cited, among others, as authority for that proposition. That case, however, differs materially from the one at bar. In that case the accident occurred from the use of a rope which the men knew w;as not strong enough but which the foreman insisted was strong enough. Moreover, in that case it appears that sufficiently strong rope was on the premises, furnished by the master, but was not used, the foreman preferring the rope which proved inadequate. The court held that the risk arising from the negligence or error in judgment of the foreman in the use of the rope was assumed by the workmen as incidental to the execution of the work in its details. The court distinguished *160the case of Vincent v. Alden (75 App. Div. 615; affd.,. 177 N. Y. 545), saying (p. 380): “There, the chains, which could have been used to take the bridge girder from the flat car, were in a tool car seven to eight miles away and the foreman borrowed one nearer by. for the purpose. Here, the proper ropes were within, the building and, therefore, at hand. There the situation was as though the representative of the master had failed in the duty to furnish the suitable appliance for his workmen.”
A similar case to the one at bar is presented in Pluckham v. American Bridge Co. (104 App. Div. 404; affd., without opinion, 186 N. Y. 561). In that case a workman was injured by the breaking of a rope which was used in moving iron beams. The foreman instructed the workmen to use a rope which was too light to stand the strain to which it was to be subjected, no other rope being obtainable; and it was held that it was the unqualified and absolute duty of' the master to exercise reasonable care to furnish a safe, and suitable rope for the use of the workmen, and that he could not, by delegating the performance of' that duty to another, exempt himself from liability for its non-performance.
The liability of the defendant rests upon general and Well-settled principles of. the law of negligence. In none of the cases cited by Mr. Justice Burr was there an entire failure on the part of the employer to furnish satisfactory appliances for the work. The plaintiff’s injuries herein were very severe and the verdict cannot be regarded as excessive, and the judgment and order should be affirmed.
Woodward, J., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.