110 N.E. 442 | NY | 1915
This is a common-law action to recover damages for injuries sustained through the alleged negligence of the defendant. The plaintiff was employed by the defendant. The defendant was engaged in supplying vessels in the harbor of the city of Buffalo with coal by means of a scow. Upon the scow was a derrick with a swinging boom. A cable hung from the boom to which the coal buckets in the hold of the scow were attached. The derrick was operated by an engine. It was what is called a "traveling derrick," and ran up and down on rails or tracks which were over the hold of the scow. On the day of the accident the plaintiff was engaged in "hooking on" the coal buckets to the cable. In order to accomplish this work it was necessary for the plaintiff to stand on the crossbar of another bucket with his back to the derrick. Owing to the nature of the plaintiff's work and the smallness of the space in which the plaintiff was required to do this work he was unable to turn and watch the derrick. While the plaintiff was thus engaged *175 and standing upon the crossbar of one of the buckets an excursion boat passed the scow. The scow swayed or rocked from the swell caused by the passage of the excursion boat, and this motion of the scow threw the plaintiff to one side of the scow, and he caught hold of one of the rails upon which the derrick ran. Without any warning or signal having been given to the plaintiff, the derrick moved quietly toward the plaintiff. It ran over the plaintiff's hand which was resting upon the rail and in an effort to save himself his other hand got under the wheel of the derrick. The result of the accident was that plaintiff lost one hand above the wrist, and one arm just below the shoulder. The claim that the defendant was negligent is predicated upon the fact that defendant failed to make and promulgate reasonable rules and regulations requiring its employees who were engaged in the operation of the derrick to warn the plaintiff and those who were working in the hold of the approach of the derrick. It was proven upon the trial that the defendant had not made or promulgated such a rule. At the close of the plaintiff's case, the defendant moved for a nonsuit on the ground that the plaintiff had not shown any negligence upon its part or his own freedom from contributory negligence, and that the plaintiff's injuries were incident to the risks of his employment which were assumed by him. The trial court granted this motion and dismissed the complaint. The judgment entered upon that dismissal was affirmed in the Appellate Division by a divided court. From the judgment thus affirmed the plaintiff appeals to this court.
The above statement, while omitting many details of the proof, sets forth the facts sufficiently to enable us to determine the question of law that is involved. In determining the question presented the plaintiff is entitled to the benefit of every favorable inference which can reasonably be drawn from the evidence. (Faber v. City of New York,
The record under review shows that the evidence presented issues of fact which should have been submitted *178 to the jury. The judgment and order of the Appellate Division should be reversed and a new trial granted, with costs to abide the event.
HISCOCK, CHASE, CUDDEBACK, HOGAN and CARDOZO, JJ., concur; WILLARD BARTLETT, Ch. J., absent.
Judgment and order reversed, etc.