108 N.Y.S. 457 | N.Y. App. Div. | 1908
The defendant is engaged in the business of making general, ship repairs, and'has its plant at what is known as the Boston Dry Dock, In the month of January, 1905, the' defendant had in its-employ Lewis Droge, the plaintiff, William White ;and John Kelly as machinist’s helpers. _ The steamship- Finance had suffered damages from a fire on' board.- She was owned by the Panamá Railroad Company,, and had been moored alongside of t|ie defendant’s wharf,; where she had for some-time been undergoing repairs. The defend-^ ant had been engaged in doing the engine work in such repairs, while other independent contractors were engaged in other work, and all of the. timé that, the steamship remained at this dock shé was in charge of the officers and crew of the ship; -The defendant had practically completed its work on the engines on the 1st of January, 1905, and On the fifth day of that month the Panama Rail
The negligence relied upon, if there was negligence of an action, .able character, is concededly that of Garrett, the assistant'engineer of- the steamship, in the employ of the Panama Bail road Company, and the defendant’s liability is based upon the proposition that Garrett was its superintendent under the provisions of the'Employers’ ■ Liability Act. It is important at the outset to get an idea of just what constituted the proximate cause of the accident, for whatever of uncertainty originally surrounded the question of the scope of the Employers’ Liability Act, it is now established that in order-to hold the employer liable, it must be shown not only that' the negligence was that of one exercising superintendence, but that he was, engaged in an act of superintendence at the time. (Lowrey v. Huntington Light & Power Co., 121 App. Div. 245; Guilmartin v. Solvay Process Co., 189 N. Y. 490, 494.) There is no suggestion that there was any “ defect, in the condition of the ways, works or machinery connected with or -used in the business of the employer,” as enumerated in section 1 of chapter 600 of the Laws of 1902, and it cannot be said that the master has given the servant an unsafe place in which to work when lie has sent him aboard a ship in which none of. the ways, works or machinery are' in a defective condition, and where the same is in charge of the officers and crew of such ship, and there is no reason to suppose that it contains any defects' which are not open.and obvious, and which are common to ships of the character of the one in question. The proximate cause of the accident was undoubtedly the fact that this' hatchway was open .on the orlop deck, and the so-called negligence of the.defendant, through its alleged superintendent, Garrett, must be based upon- the fact that Garrett, who had preceded the plaintiff, knew that the hatchway was open and did not close the same or give warning that it was open. It should be remembered that the ship was in the control of the officers of the Panama Bailroad Company, or the officers of the ship. So far as the evidence goes, the hatchway may have been open for the purpose of enabling the other contractors to do their work or it may have been open for the purpose of storing cargo or coal.of supplies, in the hold of the vessel. Certainly the evidence does nol show that Garrett had any control over the hatchway, or that it was
But Garrett was not the defendant’s superintendent within the meaning of the Employers’ Liability Act: lie was not in the employ of the defendant; was in no wise subject to the control of the defendant, and legislation has not yet reached the point of imputing negligence where there is not at least some measure of con-. trol on the part of the one who is to be held liable. The language of the statute, when read in connection with the purposes of the act, is not capable of such a construction as the plaintiff seeks to place upon it. The provision is: “Where, after-this act takes effect, personal injury is caused to an employee who is himself in the exercise of due care and diligence at.the time: * * * 2. By reason of the negligence of any person in the service of the ' employer entrusted with and exercising superintendence whose sole or principal duty is that of superintendence, or in the absence of such superintendent, of any person'acting as superintendent with the authority or consent of. such employer,” the employee shall be given the additional right of action. The effort to make this provision reach out and embrace Garrett, the employee of the Panama Railroad Company, in charge of certain repairs being made by the latter company in its own behalf with workmen furnished by the defendant, as the superintendent of the defendant, shows to what an extent enthusiasm in behalf of an unfortunate client may carry counsel and even the,court. The primary liability of the employer for the negligence of a superintendent is limited to “ any -person- in ■ the service of the employer,” and no fair construction of the statute could be made to cover any other case than that of a person in tlie service of the defendant. If the defendant had been doing the
The judgment and order appealed from should be reversed, with 'costs.
Jenks, Hooker, Gaynor and Hiller, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.