33 Misc. 463 | N.Y. App. Term. | 1900
The plaintiff, while at work for the defendant, as a carpenter, employed by the day, on the ground floor of its building, on March 16, 1896, was injured by the fall of a shutter, which a laborer named John Leonard, in the defendant’s employ, had. thrown- from a window above.
The defendant was, at the time of the accident, a domestic corporation, carrying on the business of a wholesale butcher, and conducting á slaughter-house at Fifty-ninth street and Twelfth avenue in the City of New York. At the time of the injury in question it was engaged in putting up, in the space formerly used as an alley for the driving in of cattle, an addition to the building with a door for the admission of cattle. TJpon such work the defendant employed in all about twenty men, including a superintendent,
At the close of the entire case the defendant moved for a disr missal of the complaint upon the ground, among others, “ That it was clearly shown that -the accident happened, if at all, through the negligence of one Leonard, a fellow servant of plaintiff ”, which motion was denied and the defendant took an exception.
The trial justice in his main charge, adverting to this subject, said: “ I will withdraw from your consideration 'the question as to whether this injury was caused by 'the negligence of a coservant, and I charge you as a matter of law, directly, that the evidence does not show that the witness Leonard was a coservant with the plaintiff in that work, which he was employed to perform at the place where the accident occurred.” The defendant’s counsel having excepted to such instructions,, the trial justice stated that under the evidence the plaintiff and Leonard were not coservants, whereupon another exception was noted in behalf of the defendant. "We think the trial justice erred in holding, as he did, that the plaintiff and Leonard were not fellow servants. When the accident occurred both were employed and paid by the same common master, for whom they worked in the same building under the same foreman in the same common employment with an immediate common object, the erection of the addition to the bidding in question.
The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.
Beekman, P. J., and O’Gtobman, J., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.