Dougherty v. Westinghouse, Church, Kerr & Co.

124 A.D. 894, 108 N.Y.S. 1129

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1908
• Status: Published

Opinion

Gaynor, J. (dissenting):

The lashing of the ball to the block was ■ a mere detail of the work of the men. The ball fell because the rope was not strong enough, i. <?., not large enough, or enough of it not used to carry the weight of the ball. This was the negligence of the men and nut of the employer, for there was plenty of good and suitable rope on hand for the men to use; and the foreman has to be considered as a fellow'servant. (Vogel v. American Bridge- Go., 189 N. Y. 373). That the action is brought under the Employers’ Liability Act does not change the case. That act does not make the employer liable for every negligence of a superintendent (if we consider Scott, the foreman in charge of hoisting the girders a superintendent), but only for his negligence in acts of superintendence (§ 1, subd. 3), as distinguished froni his acts as a workman in doing the details of the work. {Hope v. Scranton & Lehigh Goal Go., 130 App. Div. 895). The person who does the act may be a superintendent, and yet the act may not be one of superintendence. The judgment should be reversed.