97 N.Y.S. 109 | N.Y. App. Div. | 1905
The -appeal in this-action was argued in the April term and the judgment and order reversed and new trial ordered, the opinion ,being reported in 104 Appellate Division, 337.
Upon-a further.consideration of this case on a motion for a.reargum.ent it appeared to the court that, evidence in. relation to the attachment of the rope tó the socket had been overlooked and we, therefore, ordered a reargnment, (105 App. Div. 641.) Upon such reargument the question presented-on the appeal now before the court is. to be. determined on the original record.- . Oh the affirmance by the Court-of Appeals of Connors v. Great Northern Elevator Co. (90 App. Div. 311; 180 N. Y. 509).the liability of one furnishing machinery or appliances for the unloading of a boat by another contractor ■ Where such appliances were not safe and proper for the purposes for which they were to be used and where in consequence of such insufficient appliances a-third party was. injured, is established. This case, therefore, comes down to a question whether the evidence was sufficient to justify the jury in finding that -the .defendant in furnishing these appliances for-unloading sand for its use furnished an unsafe and improper, appliance for. ’that purpose. As I view it the principle upon which this liability can be imposed is that recognized in Devlin v. Smith (89 N. Y. 470); Coughtry v. Globe Woolen Co. (56 id. 124) and applied by this court in Kahner v. Otis Elevator Co. (96 App. Div. 169), and that , is that .a person undertaking to furnish machinery -or appliances for the use-of others assumes -a duty to furnish a. proper and safe appliance, and a negligent performance of such a duty resulting in in juries to those engaged in
It appears in this action that Murray & Co. made a contract with the city of Mew York to deliver sand at its dock at the foot .of East Twenty-fourth street. Pursuant to this contract Murray & Co. furnished at the Twenty-fourth street dock a schooner loaded" with sand, the sand to be delivered to tlie city under the contract. This sand was to be" delivered for the use of the department of docks of the city, and was to be “ delivered and placed on board of Department scows, or upon piers or bulkheads, at such points on the Mortli River, south of Sixtieth Street, or on the East River south of One Hundred and Twenty-fifth Street, and in such quantities and at such times as may be directed by the engineer.' The sand required to be delivered at the West Fifty-seventh Street or at the East Twenty-fourth Street yard will be shpveled into tubs to be furnished by the Department of Docks and Ferries, by the furnisher, and the tubs will be tended and dumped by the furnisher: The Department of Docks and Ferries will hoist the sand from the deck of the vessel or scows to the height required to dump the tubs into a car, which will be trammed and dumped by the furnisher, in the bins on the pier at West Fifty-seventh Street or at East Twenty-fifth Street, as directed by the engineer.” This schooner arrived at the dock at the foot of East Twenty-fourth street on December 17, 1900. The plaintiff was employed by Murray & Co. on the schooner. The defendant furnished tubs and an apparatus for hoisting them, and into these tubs the plaintiff and other employees of Murray & Co. shoveled the sand. The tubs were then hoisted to a height necessary to dump the tubs into a car, which transferred the sand to a bin on the defendant’s dock, where it was stored for the use of the defendant. The hoisting was done by employees of the defendant. The plaintiff was engaged in shoveling sand into these tubs on Monday, December nineteenth, when one of the loaded tubs fell, striking him on the head and causing the injuries for which he seeks to recover. The fall of the tub was caused by a
Ho question of evidence was presented, and I think, therefore, -that the verdict was sustained by the evidence;
The judgment and; order appealed from should be affirmed, with costs. ' • .
O’Brien, P. J., McLaughlin, Laughlin. and Houghton, JJ., concurred.
Judgment and order affirmed, with costs.