89 F. 60 | E.D.N.Y | 1898
Upon a dark night, the mate of a ship advised the master thereof that the bow line holding the ship to a wharf in the city of Yew York had been thrown off the cleat on such wharf, whereupon the master directed the ship to be moved astern. The line, in fact, had not been thrown off by the person on the wharf who attempted the same; and the libelant, an able seaman, who had cast the turns of the line off the bitts on the ship, and had given it slack to enable it to be cast off the cleat, was in an unexplained way caught by the line running out, and grievously injured. The mate had been intoxicated during the afternoon, and had been taken in charge by the libelant, who endeavored to overcome his intoxication before the arrival of the master, who was absent, and did not appear until shortly before the accident, at which time the mate had in such measure recovered from his insobriety that it was not necessarily noticeable. The libelant contends that the injury was caused by the negligence of the mate; that his intoxication contributed to the negligence; that the master was negligent in continuing the mate in soi vice, and commit ting to his supervision the work of casting off the line.
There are certain basic rules of law governing the relations of master and servant, which may be stated generally as follows: The master must use reasonable care to secure competent servants, and if, after such due care, he employ a servant, the master cannot be charged with injury to a co-servant arising from the incompeteney of the servant so employed, unless the master knew, or in the exercise of ordinary care should have known, of such incompetency. Chapman v. Railroad Co., 55 N. Y. 579; Cameron v. Railroad Co., 145 N. Y. 400, 40 N. E. 1; Park v. Railroad Co., 155 N. Y. 215, 219, 49 N. E. 674. The burden is on the injured servant to prove the master’s negligence in employing or continuing the employment of an incompetent servant. Wright v. Railroad Co., 25 N. Y. 566; Gilman v. Eastern Railroad Corp., 10 Allen, 233; Davis v. Railroad Co., 20 Mich. 105, 122. When a servant becomes incompetent, his co-servant, knowing thereof, assumes the risk of injury to himself arising from such incompetency, unless he notify the master of the same when he has a fair opportunity to do so. Davidson v. Railroad Co., 44 Fed. 476, 481; Kroy v. Railroad Co., 32 Iowa, 357; Youll v. Railroad Co., 66 Iowa, 346, 23 N. W. 736. The holding was correct in the dissenting opinion in Tonnesen v. Ross, 58 Hun, 415, 12 N. Y. Supp. 150, 151. It may be added that this assumption of the risk of such incompqtency continues even after the master has been apprised thereof, if lie continue the incompetent servant in Ms employment. This is qualified by (lie rule that, if the master hold out inducements to the co-servant to remain in Ms service, such co servant may thereby be relieved from the risk of service with an incompetent person.
In the case at bar the libelant accuses the master of the ship of negligence in continuing the mate in his service, when, as it is charged, the mate was incompetent by reason of intoxication to perform Ms usual duties. The evidence shows that during the afternoon, in the absence of the master, the mate went ashore, and became intoxicated; but such intoxication had diminished to such an extent that