In January, 1908, the defendant corporation was engaged in constructing the Blackwell's Island bridge across the East river. The bridge, so far as then built, consisted of two decks, the lower deck being intended for trolley cars, teams, pedestrians, and the upper deck for an elevated railroad. On the upper deck the defendant was operating a traveling derrick. This deck consisted of lateral floor beams across which were laid heavy wooden ties which were so long that their ends projected over the sides of the floor beams. Upon these ties had been spiked rails which it was desired to remove by means of the traveling derrick which has been mentioned. The rails behind the derrick were taken *Page 458 up and relaid in front of it. The plaintiff's intestate, Martin Brady, was an ironworker in the employ of the defendant; but upon the day of the accident he was directed by the defendant's foreman to leave his usual work and act as a signalman to direct the engineer on the traveling derrick when to raise and lower the rails which were being moved. In order to see what was going on and to communicate the necessary information to the engineer, Brady was obliged to walk along the ends of the ties which have been mentioned as projecting over the sides of the floor beams. On account of the length and weight of these ties it was perfectly safe to do this inasmuch as the weight of a man would not suffice to tip up the ties even after the iron rails had been removed therefrom. This was true of all the ties with a single exception and that exception proved fatal to Brady. It seems that several months before the accident one of the ties had been sawed in two in the middle for the purpose of allowing a guy rope to pass through from the upper deck to the lower. This long tie, therefore, from which a section had been cut out in the middle became two short ties; and each of these short ties was so light as to be insufficient to support the weight of a man placed upon the outer and projecting end after the iron rails had been taken away. Brady had no notice of that danger. He was walking along the ends of the ties to give a signal to the engineer when he stepped upon this tie which had thus been shortened. It gave way with him and he fell to the lower deck and was killed.
This case has been reviewed by the Appellate Division three times. Upon the first review a judgment in favor of the plaintiff was reversed because of the refusal of the trial judge to instruct the jury that the structure from which the plaintiff's intestate fell was not a scaffold within the contemplation of the Labor Law. (Brady v. Penn. Steel Co., 134 App. Div. 372.) On the second review a second judgment in favor of the plaintiff was reversed *Page 459 on the ground that the case was one in which the dangerous condition was created by the very work itself in which the plaintiff's intestate was engaged and the rule in regard to a safe place did not apply. (Brady v. Penn. Steel Co., 138 App. Div. 233. ) Upon the third trial, which now comes here for review, the court following the law of the case as laid down by the Appellate Division on the second appeal, dismissed the complaint after the plaintiff had put in her evidence and the defendant rested without offering any proof. The Appellate Division (one of the justices dissenting) has affirmed the judgment upon this dismissal on the opinion of that court on the second appeal.
I am of the opinion that the learned Appellate Division fell into error in thinking that this case was controlled by the principle applied in Citrone v. O'Rourke Eng. Const. Co. (188 N.Y. 339). There it was held that the duty of the master to furnish his servants with a reasonably safe place to work in has no application when the danger to which the servants are exposed is due to the manner in which the work is prosecuted. The work to be done was the construction of a trench, and its very construction made the place where the plaintiff had to work and created the danger to which he was exposed. That danger was unavoidable and appertained to the very work which the servant was doing. In the present case the conditions were very different. The plaintiff's intestate was occupied in giving signals to the engineer of the traveling derrick in respect to the removal of the rails. Such removal created no danger whatever along the path over the projecting ends of the ties upon which Brady was expected and required to move except in the single case of the one tie which had been cut in two. The shortening of that tie made it a little less than a death trap to a person circumstances as Brady was without any warning of the danger. The condition which resulted in his death was created, not by anything which he was engaged in *Page 460 doing but by the previous shortening of the tie, so that the removal of the rails made the end insecure to step upon while leaving the ends of all the other ties perfectly safe as a pathway for the men at work there. The obligation of the master to exercise reasonable care to furnish his servants with a safe place in which to work does not require him to avert every peril which may arise in the erection of a structure like this bridge which necessarily involves many dangers to the workmen however carefully the work is prosecuted. The master was not prohibited from cutting this tie in two in order to make the necessary opening for the guy rope because the shortening of the tie would render it dangerous to step upon after the removal of the rails; but the fact that such a condition had been created, rendering one particular tie exceedingly dangerous as a stepping place while all the others were perfectly safe, did impose upon the master the obligation to warn a servant unfamiliar with the conditions and called upon to work there on short notice, that he could not step upon the end of that particular tie without imperiling his life. In the absence of any warning to this effect a master should be regarded as having failed in his duty to exercise reasonable care to furnish a safe place, for the warning would have made the place safe which without it proved deadly. The complaint specifies the failure to give any warning of this dangerous condition as one of the elements of negligence with which the defendant is chargeable.
I think the facts proved by the plaintiff entitled her to have the question of the defendant's negligence submitted to the jury and, therefore, that the judgment should be reversed and a new trial granted, with costs to abide the event.
HISCOCK, COLLIN, HOGAN, CARDOZO and SEABURY, JJ., concur; CUDDEBACK, J., dissents.
Judgment reversed, etc. *Page 461