Eastland v. Clarke

53 N.Y.S. 1103

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1898
• Status: Published

Opinion

GREEN, J. (dissenting).

It does not seem to me that the question of negligence of a co-employe is presented. The plaintiff and the butler were not engaged in a common enterprise or common employment. The butler did not assist or direct plaintiff in getting in the wood. The plaintiff was hired by defendant, and directed what to do, but she said she would send word by the butler as to "where plaintiff should put the wood. This was all that was done by the butler. The defendant owed the duty to plaintiff of having a safe place in which to do the work. The plaintiff was hired for a temporary job. The butler was in the permanent employ of the defendant, and had nothing to do with getting the wood into the cellar. There is nothing to show that the butler left the opening uncovered. He may have done so or not. If he did, it was long before the employment of the plaintiff by defendant, and the latter was bound to know that the place in which plaintiff was to do the work was a safe and proper place. The case should have been submitted to the jury on all the questions.