89 N.Y.S. 627 | N.Y. App. Div. | 1904
The plaintiff was a longshoreman in the employ of Emery & Price, and on the day of the accident was engaged with others in transferring reels of barbed wire from a lighter to the bark Meta, lying at pier 12, East river. It appears that the lighter was much lower than the vessel which was being loaded, so that it was out of sight of those upon the dock. An apparatus had been rigged up to the masts on the vessel for suspending block and tackle, and a rope extended through the 'pulleys in such a Way that one end of the same dropped down upon the lighter, while the other crossed over the bark, through the pulleys, and was attached to a horse upon the dock. The end of the rope which fell upon the lighter .was equipped with a hook, and the plaintiff, at the time of his injuries, was engaged in placing several reels of barbed wire .upon hooks attached to the ends of short ropes, which in turn were fastened to the hoisting rope by a single hook. Emery & Price’s foreman in charge of the ' loading stood upon the deck of the vessel, and when tlie plaintiff notified the foreman that he had the load ready, the latter blew a signal upon a whistle, and the man in charge of the horse drove the animal away from the ship, raising the load and drawing it to- the deck of the vessel, where it was unhooked, and the operation was again gone through with. At the time of the accident the plaintiff had hooked on the load, had given the signal and the horse had
Of course, if the driver of the horse was a fellow-servant of the plaintiff, there was no cause ,of action, and the dismissal of the complaint was proper; and this is the principal question presented upon this appeal.
It appears that the defendants kept' horses for the purpose of doing this kind of work about the docks; that Emery & Price had •a general arrangement with them to supply horses when needed, and that the defendants, when called upon for a horse, sent it to the premises of Emery & Price, accompanied by a driver, and this was the case on the day of the accident. The driver of the horse was. in the general employ of the defendants, and, assuming that he was negligent in failing to stop, the horse upon a proper signal,' were the defendants liable? Was he the defendants’ servant at the time of the accident to such an extent that they are liable for his negligence in the performance of a detail of the work in which he was engaged at the time with the plaintiff and other of the latter’s fellow-servants ? We are of the opinion that he was not the servant of the defendants at the time of the accident, but that he was a fellow-servant of the plaintiff. We reach this conclusion because of the principle that where a person accepts employment in a business in which others are engaged with him, there is ah implied agreement upon his part to assume all the ordinary risks attendant upon such business, including accidents which result from the carelessness of coemployees, and the foundation upon which it rests is unity of service and control. (Cunningham v. Syracuse Improvement Co., 20 App. Div. 171,174.) Clearly, if the defendants had sent a horse to Emery & Price, and the latter had taken a man about the dock
The conclusion which we have readied is not in conflict with that held in Mills v. Thomas Elevator Co. (54 App. Div. 124). In that case the plaintiff was in the employ of the Manhattan Concrete Company which had a contract for laying concrete floors for a sugar refinery. The concrete company made a contract with the Thomas Elevator Company to put in a hod'elevator and to furnish a man to operate the same. The plaintiff ivas sent to remove an obstruction from the elevator shaft, and while thus engaged was injured by the action of the engineer of the elevator company in starting the elevator without a proper signal. In that case the men were not engaged in the same employment; the elévator company furnished its machine and a man to operate the same; it had no connection with the work for which the plaintiff was employed and the plaintiff had not, therefore, assumed the risks of the engineer’s negligence in running the elevator.
The judgment appealed from should he affirmed, wjth costs.
Judgment unanimously affirmed, with costs.