92 N.Y.S. 95 | N.Y. App. Div. | 1905
On the 9th day of June, 1900, the plaintiff was employed by the Edward Stearns Lighterage and Transportation Company in unloading sugar from the lighter John F. Reymer upon the dock of the National Sugar Refining Company. The lighterage and transportation company was engaged in bringing bags of raw sugar upon its lighter to the dock of the sugar refining company, where it was to deliver the sugar upon the wharf. It made use of several lighters in this work, some of which were equipped with steam winches, while others, including the John F. Reymer, were without such equipment. Whenever the lighter was without the winch equipment the lighterage company made use of a winch belonging to the National Sugar Refining Company, the appellant here, which winch was run by steam furnished by the sugar refining company, and was operated by an engineer in the employ of the latter. The lighterage company paid the sugar refining company an agreed price per hour for the use of this winch and the engineer, and it is clear from the evidence that the work performed was that for which the lighterage company was engaged.
The plaintiff, while at work for the lighterage company in conveying the cargo of the lighter to ,tlie wharf, was knocked down and injured by a draft of five bags of sugar, which it is claimed was improperly set in motion through the negligence of the engineer of the winch in starting before receiving a proper signal. The action was originally brought against both companies, but upon the trial the complaint was dismissed as to the lighterage company, and it was sent to the jury on the material issues of fact raised by the pleadings, resulting in a verdict in favor of the plaintiff, on which judgment has been entered. The defendant sugar refining company appeals.
We are unable to distinguish this case, in principle, from Breslin v. Sparks (91 App. Div. 69), where it was held that the plaintiff was the fellow-ser.vant of one who was in the general employ of a firm which supplied horses for doing a line of work similar to that in which the lighterage company wps engaged at the time of the accident to the plaintiff, but who was engaged at the time in the same general occupation of unloading a ship. We fail to discover any legal distinction between the engineer of the defendant, the
The judgment and order appealed from should be reversed with costs.
Bartlett, Jenks and Hooker, JJ., concurred; Hirsohberg, P. J., dissented.
Judgment and order reversed and new trial granted, costs to abide the event.