12 Daly 441 | New York Court of Common Pleas | 1884
One Squires, the shore-boatswain and ' foreman of defendants, employed a gang of men to clean the ship’s bottom. It was necessary to build a scaffold, which was supported by spars, one end of which rested on the dock, the other end being supported by ropes fastened to the rail or davits of the steamer. Plaintiff, who was a seaman, and had been boatswain on this steamer when she came in port, was employed with the gang to clean the ship. The first day they worked together, building the scaffold or bringing the timber to construct it. Plaintiff went for the spars and planks to bring them to the ship, and others of the gang erected the scaffold. These others were riggers, who are kept all the year round for that work. They are a different class of seamen from plaintiff, who had nothing to do with the building of the scaffold. The riggers built it under Squires, who superintended the work there. Altogether in the gang there were forty men. Some brought the spars and boards, and others built the scaffold. All were under Mr. Squires. The accident was caused by a rope getting loose or untied from a spar. How the rope got loose was not explained by plaintiff, who said he did not know. One of his witnesses, McGilveay, said that the accident was caused by a hitch on the line slipping; the
The defendants would be liable for the negligent construction of the scaffold by the workmen who erected it acting under the direction of their agent, unless such workmen were the fellow servants of the plaintiff (Devlin v. Smith, 89 N. Y. 476).
Fellow servants are employés who are engaged in the same general business or enterprise (Coon v. Syracuse &c. R. R. Co., 5 N. Y. 492; Flike v. Boston &c. R. R. Co., 53 N. Y. 553). All the men employed on the job in which plaintiff was engaged, including the riggers, were in a gang employed first to build the scaffold. That some brought the spars and timbers and others fastened them together, that some were riggers and others seamen, did not make them strangers to each other’s business or employment. Mechanics of different trades may be necessarily employed on the same work and are fellow workmen. .
It is not shown that the defendant, the corporation, employed an incompetent agent, or foreman, nor that it employed unfit or incompetent workmen. There were no defects in the ropes, spars or planks. All that appears is that a rope that should have secured a "spar slipped or came untied. If this was proof of negligence, it was the negligence of the workmen and not of the agents of the company.
The judgment should be affirmed, with costs.
Larremore and Van Hoesen, JJ., concurred.
Judgment affirmed, with costs.