23 N.Y.S. 477 | N.Y. Sup. Ct. | 1893
It is clear that the truck was not a proper vehicle on which to move the drums down an inclined plane, and it is certain that the skid was placed at a dangerously steep angle. Whether the plaintiff could recover on these grounds may be doubtful, as it might be said that the danger was obvious, and he took the risk. To a certain extent a laborer may rely on the presumed superior knowledge of his employer, and perhaps it was a fair question for the jury whether he might do so in this instance. We need not pass upon these questions, as we think another point is presented which requires a reversal. Both witnesses testify that, had the mouthpiece been properly attached to the skid, so as to follow its motion, the plaintiff could have escaped. The gap of some inches left between them is not shown to have existed when the plaintiff went to the work. That would vary from moment to moment, as the vessel rolled. That was a danger we cannot say plaintiff accepted. No such gap should have been permitted, and that it existed was the fault of the superior, or his alter ego. The stevedores did not rig the vessel for the work, and the superintendent was not a fellow servant with the plaintiff. Judgment reversed, new trial ordered, costs to abide event. All concur.
