63 N.Y.S. 631 | N.Y. App. Div. | 1900
The direct cause of the plaintiff’s injury — the depositing of the contents of a wheelbarrow upon his head and shoulders — was confessedly the act of a co-servant, which of. itself did not, of course, create any liability upon the part of the common master. It is contended, however, that the injurious consequences of this act would have been averted had not the foreman, Eagan, been unmindful of his promise to protect the plaintiff while in the trench, and that, inasmuch as Eagan had undertaken to perform a duty which devolved upon the master; his omission of such duty was negligence for which the defendant is liable. Although the fact is not made to appear by any affirmative evidence, it may, for the purposes of this review, be assumed that Eagan neglected his self-imposed duty of watchfulness, and with this assumption in the case the plaintiff’s proposition is fairly presented for our consideration. The general principles applicable to cases of this character, viz.
Judgment of the county court reversed, and judgment of the municipal court affirmed, with costs. All concur.