140 N.Y.S. 529 | N.Y. App. Div. | 1913
Plaintiff’s intestate at the time of his death was a deckhand in the employ of the defendant on its dredge, which was being used by defendant about one mile south of Fort Ann in removing earth from the bottom of the barge canal. The dredge was stationed in the center of the canal, which at that point was about 100 feet wide and filled with water. Plaintiff’s intestate was employed in the day shift and commenced work at eight o’clock in the morning. It was customary for the defendant to take its employees from Fort Ann, where plaintiff’s intestate resided, to the dredge on a steam tug, but when that was not done the men were accustomed to walk along either the east or west bank of the canal until opposite the dredge, when a boat was sent to take them over to it. It was also claimed by the defendant upon the trial that a third way in which the employees might reach the dredge was by walking upon a line of twenty-inch round iron pipe, supported at intervals upon barrels, which at this time extended from the east bank. of the canal to the dredge. As there was no rope above the pipe or other means by which a person walking upon the pipe could steady himself, and as this course was very infrequently used by any of the workmen, consideration of this method of reaching the dredge may well be eliminated. It had been customary for the defendant to place- the men upon the dredge rather than to require any of them to furnish his own transportation from the bank to the dredge. When the steam tug was out of commission it was customary for any of the workmen who happened to be on the dredge to take a boat and go over to the bank and carry the men to the dredge, and that duty had not been delegated by the defendant to any one employee.
Upon the morning of October 31, 1911, defendant’s steam tug being disabled, did not run, and plaintiff’s intestate, in company with one Kennedy, defendant’s chief engineer, and
Three questions were submitted to the jury:
1. As to whether the boat furnished to convey plaintiff’s intestate from the bank to the dredge was reasonably safe for that purpose.
2. As to whether Kennedy had authority to direct the men to get on the boat, and if so whether he gave orders which induced the overcrowding and sinking of the boat.
3. As to whether deceased was free from contributory negligence.
At the request of the defendant the court further charged the jury that the master did not guarantee the safety of its employees, and was not bound to furnish an absolutely safe place to work, and was only bound to exercise reasonable care and prudence in furnishing a safe place to work; that a master is not liable when one of his employees, without authority, express or implied, assumes to direct another employee to work in a place which may be unsafe; that the negligent act must be one pertaining to superintendence, and that there is no liability when the act is subject of performance by one of any subordinate employees, and includes no element of superintendence; that if one employee is injured through the negligence of another employee so that the fellow-servant rule comes in, the master is not liable to A if another employee of the same grade, namely, B, is negligent—he is only liable when the employee is of such standing in his service that he really is the master for that work, and when such man is negligent then the employee may recover from the master; and that if there was any danger, and that danger was perfectly obvious and apparent to the deceased, and the jury find it was known to him, it is then deemed to have been assumed by him. The court submitted the case to the jury upon the theory that the overloading of the scow, which caused its sinking and the drowning of the deceased, was due to the order of Kennedy, for whose negligence the defendant was responsible. The jury rendered a verdict for plaintiff of $2,500. The court thereupon, upon the application of defendant, granted an order setting aside the verdict and granting a new trial “upon the exceptions taken by the defendant upon the trial herein and upon the ground that the said verdict is contrary to law. ” From such order this appeal has been taken.
The court based its action in setting aside the verdict upon the ground that even if Kennedy could be held to have been the defendant’s superintendent, the act or omission complained of, in order to make the defendant liable, must have occurred in
The action was brought under the provisions of the Labor Law relating to employers’ liability for injuries. The defendant having assumed the duty of transporting the laborers to the dredge became bound to the use of reasonable care in so doing, and this contemplated' the employment of a reasonably safe means of transportation. For this purpose in part the defendant had provided in addition to the steam tug, the scow and the open boats, and a pump as the means of freeing the scow of water. There is no evidence that any defect whatever existed in any of them. Under the proof, the disaster occurred by reason of overloading the scow, coupled with the impetus given it as it left the bank. The water in the scow did not render it defective, but simply lessened, its carrying capacity when dry by the weight of the water in the boat. The negligence of Anastasia so far as it contributed to overloading the scow was the negligence of a fellow-servant, and any negligence attributable to him in using the scow instead of one or both of the open boats, or neglect to free it of water, was the negligence of a servant in a detail of the work. For neither of these would the master be liable, either under the common law or the Employers’ Liability Act. (Cullen v. Norton, 126 N. Y. 1; Dair v. New York & Porto Rico Steamship Co., 204 id. 341; Vogel v. American Bridge Co., 180 id. 373; McConnell v. Morse Iron Works & Dry Dock Co., 187 id. 341; Quinlan v. Lackawanna Steel Co., 191 id. 329.)
However, a very different question arises as to the liability of the defendant for any negligent act of Kennedy resulting in the death of plaintiff’s intestate. Kennedy was defendant’s chief engineer and had been in its employ for upwards of four years. He had charge of the machinery of the dredge and gave orders relating thereto. Witnesses testified that under him were the engineers, levermen, oilers and coalpassers. O’Connor, an oiler, testified that Kennedy was defendant’s
The verdict having been set aside as contrary to law, all questions of fact are deemed established in favor of plaintiff, and the single question for determination upon this appeal is whether the defendant is legally liable for such negligent acts of Kennedy.
Prior to the passage of chapter 352 of the Laws of 1910, amending the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 3G], art. 14), it was required in order to render
It must be held, therefore, that under the amendment of 1910 the master is liable for an injury to a servant caused by the negligence of a superintendent or any person intrusted ■with authority, the servant himself being free from contributory negligence. But the defendant contends that plaintiff’s intestate was not in the service of the defendant at the time he met his death, hut was simply on his way to his work, and hence was not within the protection of the statute. As before stated, the master had assumed to transport plaintiff’s intestate and the other workmen to the dredge by steam tug from Fort Ann when the tug was in commission, and when not, by this scow or an open boat from the bank to the dredge. Such action by defendant was in the line of its duty, and was a necessary incident to the employment of deceased and to the service which he was to perform and connected with it. (Vick v. N. Y. C. & H. R. R. R. Co., 95 N. Y. 267; McDonald v. Simpson-Crawford Co., 114 App. Div. 859; McGuirk v. Shattuck, 160 Mass. 45.)
Hence, while being transported by the defendant from the bank to the dredge, deceased must he regarded as having been in the service of the defendant, and the defendant obligated to the exercise of reasonable care in transporting him safely.
Plaintiff’s intestate having met his death while an employee of the defendant- by reason of the negligent acts of defendant’s superintendent while both were engaged in the master’s service, the jury having found that the deceased was free from contributory negligence, the plaintiff was entitled to recover.
The order setting aside the verdict and granting a new trial should be reversed and the verdict reinstated.
All concurred.
Order reversed and verdict reinstated, with costs in this court and at the Trial Term.