Dissenting Opinion
(dissenting): The complaint was dismissed because the plaintiff was injured through the negligence of a fellow-servant. The plaintiff claims that the winch, although suitable for the work in hand, was unsafe and improper to do the work because it had been wound and set up to be operated in the reverse of the customary method, and so an undue burden was placed upon the winchman who was not accustomed to working a winch in that manner, and that because of this, plaintiff’s working position became unsafe. The winchman operating the machine was on the deck; the plaintiff and other employees were in the hold out of his sight; when the winchman was notified to slack the rope which was attached to the beam in the hold, he made a mistake and tightened the rope, which caused the beam to fall and injure plaintiff. It appears that he was a competent workman, and yet had made this same mistake several times
Lead Opinion
Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 31st day of January, 1922, dismissing the complaint, and also from an order entered on the 2d day of February, 1922, denying plaintiff’s motion to set aside the said dismissal and go to the jury on the question of fact raised by the issues and the testimony and the pleadings.
Judgment and order affirmed, with costs. No opinion. Kelly, Manning and Kelby, JJ., concur; Young, J., reads for reversal, with whom Blaekmar, P. J., concurs.