35 N.Y.S. 534 | N.Y. Sup. Ct. | 1895
The plaintiff’s intestate, while in the service of the defendant, in March, 1894, received an injury resulting in his
The only question requiring consideration is whether there is any support in the evidence for the charge of negligence on the part of the defendant. When the decedent went to work for the defendant he assumed the ordinary hazards incident to the service, which included the consequences of the negligence of his coemployés. The second mate, who was foreman of this work in.which they were engaged, was the coemployé of the other workmen. Mahoney v. Oil Co., 76 Hun, 579, 28 N. Y. Supp. 196, and cases there cited.
So far as we are advised by the evidence, the danger of accident was not within reasonable apprehension as the flooring stood when the work was commenced, and the accident which followed could not occur otherwise than in the process of the work of removal of the means of support furnished by some of the sections to others beneath the hatch. Until this was done by the workmen, there was no want of a reasonable degree of safety. The evidence does not show any existing condition inherently dangerous in the combination of the sections of the flooring, or a condition from which danger in the course of the work could reasonably be apprehended from the exercise of reasonable care in the removal of those sections from the positions in which they were to the places designed for them to constitute the floor of the hold of the vessel. The proposition, therefore, upon which a master may be chargeable to his employé, by reason of his failure to furnish him a safe place to work, does not seem applicable to the present case as presented by the evidence.
In the cases to which our attention is called by the plaintiff’s counsel the unsafe conditions were not produced by the performance of the work in which the employés were engaged. In McGovern v. Railroad Co., 123 N. Y. 280, 25 N. E. 373, the defendant failed to "use the care required of it to see that the place where the servant was put to work in the elevator was then safe, when in fact it was otherwise. The same may be said of Stuber v. McEntee, 142 N. Y. 200, 36 N. E. 878, where the plaintiff’s intestate was employed to work in a trench, which was in an unsafe condition for the service. Similar in its nature was Kranz v. Railway Co., 123 N. Y. 1, 25 N. E. 206. And for a like reason recovery against the defendant was sup
The judgment and order should be reversed, and a new trial granted; costs to abide the event. All concur.