85 N.Y.S. 644 | N.Y. App. Div. | 1904
The plaintiff’s intestate was a scooper employed by the Lake Car riers’ Association in unloading grain from the boat Thomas May.tham into the elevator owned by the defendant, a domestic cor
A heavy block of wood called the snatch block was attached to an upright or stanchion by a line used to draw the grain into the leg extending from the hold of the boat to the elevator and up which the grain was drawn. Connors, the intestate, was working in the hold of the boat in November, 1901, with about 100 other workmen unloading the grain when the rope (which was defective and insufficient) holding up this block parted and the block fell, striking Connors and causing his death. Two or three days before the accident Cavanaugh, the defendant’s representative, put in this rope, when the following occurred, as testified to by the assistant boss scooper: “ Just before the accident there was a snatch block on the deck and no line on it and I told Cavanaugh to put a line on it. This was a few days before the accident or a few jobs I don’t know. I told him a few jobs before this one prior to this one to put a line on the block, so he says, ‘ All right, I will put one on,’ and he went into the tower. A linó something like this was lying in the tower and he started to put this on. I said, ‘ What are you
The intestate was not in the employ of the defendant. The appliances, however, were furnished by it to use for the purpose of unloading the grain. Its man had charge of this business. > The appliances were furnished at a specific compensation and were used as designed and intended. Is the defendant liable ?
When the defendant turned over the steam shovel and its appliances to the Lake Carriers’ Association to be used in unloading grain, it knew that the grain was to be taken out by a large number of scoopers. It impliedly invited these men to go into the hold of the freighter with the assurance that it had furnished appliances which rendered the performance of the work reasonably safe so far as such tackle was concerned. Its obligation to the men who did the work was to furnish fitting appliances. They had a right to assume that this had been done. The defendant, to be sure, .made its agreement with the Lake Carriers’ Association and there was no privity of contract between the elevator association and the plaintiff’s intestate in that he was not in its employ. The liability of the defendant is not contractual in its character. (Barrett v. Lake Ontario Beach Imp. Co., 174 N. Y. 310, 314.) It undertook to furnish appliances for a particular work, the negligent performance of which duty it knew imperilled the lives of many men. Having for an adequate compensation undertaken to furnish this tackle with full knowledge of its use, it assumed a responsibility to those who were injured while it was being operated precisely as intended.
In Coughtry v. Globe Woolen Company (56 N. Y. 124) a firm of contractors was putting a cornice on defendant’s mill. The defendant’s men erected a scaffold for this purpose. The plaintiff’s intestate was employed by the contractors in putting up the cornice. The scaffold, by reason of its improper construction, fell while the plaintiff’s intestate was at work upon it, causing his death, and the Court of Appeals reversed the judgment of the Géneral Term, which affirmed a nonsuit. The court say (at p. 128): “It is evident from the nature and position of the structure
It is also to be noted that the death of the plaintiff’s intestate was. the natural and. probable result following the parting of the rope and the consequent falling of the block. The injuries were not unexpected, but were to be anticipated readily, and it was incumbent upon - the defendant to protect the men against an accident which it could easily prevent.
The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred, except McLennan, P. J., and Stoves, J., dissenting.
Judgment reversed and new trial ordered, with costs to the appellant to abide event. '