209 A.D. 41 | N.Y. App. Div. | 1924
The plaintiff has recovered judgment herein for $4,000 damages, besides costs, amounting altogether to $4,141.70. The judgment is recovered against the defendant Turner & Blanchard, Inc., as compensation for personal injuries claimed to have been sustained by the plaintiff while in said defendant’s employ, by reason of the negligence of the latter. The defendant has appealed from the judgment entered and also from the order denying its motion to set aside the verdict as against the weight of the evidence.
The accident occurred on June 16, 1920, at about two o’clock in the afternoon. The original defendants in the action were Turner & Blanchard, Inc., the appellant herein, and Houlder, Weir & Boyd, Inc., the owner of the steamship known as .the Montrose. At the outset of the trial, upon motion of the plaintiff, the action was discontinued and complaint dismissed as against the owner of the vessel. The action was continued and recovery has been had against the defendant Turner & Blanchard, Inc., a stevedore corporation.
The accident occurred at pier 1, Staten Island. The plaintiff was a longshoreman and was engaged at the time in loading the steamship Montrose with a cargo. At the immediate time of the accident the stevedore corporation was engaged in loading in the hold of the Montrose a quantity of nails in kegs. For this purpose the' defendant, appellant, employed a hoisting apparatus by means
“ That the plaintiff will show that the nitch string was not properly attached to the merchandise, that the rope was frail in places, and that this was obvious; that said condition had existed for some time prior to the accident; that the defendant had notice and knowledge of such condition.
“ That further by reason of the looseness and frail condition of the rope attached to the net that was holding the merchandise that was then being lowered, that a corner or a portion of the said net tore away; that as a result of the defective condition and appurtenance used for lowering the barrels of nails plaintiff was injured.”
The only objection suggested by counsel for the defendant was that he had only received notice thereof on the Saturday before. Asked if counsel for the defendant claimed surprise, he disavowed the same and stated that he was perfect y willing to go ahead and that “ it is not a great deal different from what their claim is; it is worded a little differently. I will go ahead.” Counsel for the defendant stated that be was not going to raise any point about surprise.
1'he plaintiff , an Italian, was sworn in his own behalf through an
The physician treating him testified as to his injuries and was apparently fair in the testimony which he gave. He testified that when he was called to see the plaintiff he found him in bed with bruises across the abdomen and back and that there was an apparent injury to the sacral iliac joints; that the plaintiff could not turn over in bed and that his condition continued for several weeks. Another physician was called who testified that there had been a permanent injury to the sacral iliac joints and that the plaintiff would never be able to do hard work again. The defendant’s physician who treated him described his symptoms with minuteness, stating that he spat blood and also that his urine was bloody, indicating an
The plaintiff's testimony as to the happening of the accident was in a measure corroborated by one other witness, a fellow-workman working by his side in the hold of the vessel in loading the nails, Antonio Guarino by name. The latter witness testified that he was working opposite plaintiff at the time of the accident and, hearing a cry, saw that the draft had fallen and that the plaintiff, was hurt. Guarino also testified that he saw that the net was broken; that the puckering string or tightening string about the top of it had been broken and that at the time there was in the draft from thirty to thirty-two kegs of nails. On cross-examination Guarino was not shaken in his testimony, insisting that the net “ was broken to one side, it was down, * * * because the string on one side had broken and the load went on the other side.” Guarino further on cross-examination reiterated his testimony to the effect: “ It was broken, every strand in it.”
As against this testimony of the plaintiff and his corroborating witness, the defendant swore six of the fellow-workmen of the plaintiff: Five of them, all Italians, and testifying through an interpreter, categorically denied that there was any breaking of the rope or sling, but testified that the difficulty came from the failure of the hoist and fall to work properly by means of which the draft was lowered. One of the witnesses and the only one not an Italian sworn by the defendant to dispute the breaking of the net, was Raymond Portal, a Spaniard. Portal spoke English and testified that at the time of the accident he was on the winch used to raise the draft from the lighter to above the deck of the ship. Asked what he knew about the accident, Portal testified that he could not tell anything about it because he was far away from the hatch at the time. He was further asked by counsel for the plaintiff whether, after he saw the plaintiff brought up out of the hold after his injury, he had or had not seen the net that had previously been sent down, and Portal replied that he could not tell as he kept on working. Asked if they continued to use the same net as that in use before plaintiff was hurt, Portal denied knowledge as to that. So that the only witnesses disputing the testimony of the plaintiff and Guarino were the five Italians, most of whom were still in the employ of the defendant. These witnesses of the defendant uniformly testified that the net was not broken, but that ° the
However, assuming that the plaintiff’s proof preponderated, nevertheless, we do not think that the plaintiff established a cause of action against the defendant. According the plaintiff the most favorable interpretation of the evidence, we think the proofs •were insufficient to justify a submission to the jury, and that the complaint should have been dismissed. The plaintiff testified that ten or fifteen minutes before the accident he saw the rope of the net was worn out in one place at the end of the string, the top of the net — the rope that went all around the net, and that he “ told this to the gangwayman.” Asked on cross-examination why he had not notified the hatch boss of the defect in the net, plaintiff answered that at that moment the hatch boss was not there, but had gone above deck. Plaintiff further testified that the first name of the hatch boss in authority on the day of his injury was “ Vincenzo,” but that he did not know his name correctly, and that the hatch boss Vincenzo, called on the job “ Jimmy,” would come down below and tell them what to do; that he'was boss of. the gang. So far as the evidence discloses, plaintiff made no complaint of the defective condition of the sling to the hatch boss nor did it appear that plaintiff’s complaint to the gangwayman was ever transmitted to the hatch boss or any one else, in authority.
The undisputed evidence on the part of the defendant was that the employees of the defendant continued to use the same net which plaintiff and Guarino testified had broken, for the rest of the day after plaintiff received his injuries, and that the net was used on the same kind of work until the loading of the ship was finished. The undisputed testimony further showed that the defendant’s employees were using two nets and sometimes three in the loading, and that the other nets were in the storeroom on the dock on pier 2, one pier distant from where the plaintiff and his fellows were working; that in this storeroom every kind of gear to load a ship, including the nets, was kept, and if at any time they had a defective net which was broken, all they had to do was to send over there and get a new one, and sometimes they were changed before breaking; that they had a man there whose duty it was to take care of the storeroom and gear and get stuff out as it was needed. In view of the uncontradicted evidence, we are unable to see how the
Under the law as enunciated by the foregoing decisions, even though the attention of the foreman or superintendent in charge of the work had been called to a defect in apparatus or appliances used, the master would not have been liable for injuries sustained by workmen where it appeared that the master had supplied other adequate tools, implements or appliances for the use of the employees in the work and which they could have drawn upon, but of which the foreman or those engaged on the work had unquestionably failed to avail themselves. But in the case at bar, even if the defect existed, the plaintiff made no complaint to any one in authority, but merely called the attention of a fellow-workman to the defective net. The plaintiff knew that the person to whom he complained was not his boss, but merely a fellow-longshoreman like himself engaged with the plaintiff in the same work. In no sense can it be said that such fellow-employee was the alter ego of the master for whose neglect the master would be liable.
We are also of the opinion that the request of counsel for the defendant that the jury be instructed that the gangwayman to whom plaintiff complained was a fellow-servant of the plaintiff and that any notice of any defect given to the gangwayman was not notice to the master, should have been granted. In the main charge the learned trial justice instructed the jury as follows: “ Plaintiff claims that he notified the gangwayman that the rope was broken or frayed; the gangwayman says he did not notify him; it is for you to decide what was the fact on that point.” Under such instruction the jury must have assumed that , their sole duty was to determine whether the plaintiff or the gangwayman, who denied that the plaintiff made any complaint, was truthful, and that if the jury decided that the plaintiff gave the true version then the defendant was hable. Such assumption was clearly erroneous for the reasons hereinbefore stated and quite overlooked the fact that the gangwayman was merely a fellow-servant of the plaintiff and in no sense the alter ego of the defendant. Under the undisputed
The judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.
Clarke, P. J., Finch and Martin, JJ., concur.
Judgment and order reversed and new trial ordered, with costs to appellant to abide the event.