McTaggart v. Eastman's Co.

27 Misc. 184, 57 N.Y.S. 222

Opinion

Fitzsimons, Ch. J.

The testimony clearly shows that, although the plaintiff and James Murphy were both employed by defendant, yet they were not in the same common employment; they were servants of defendant, but were not fellow servants; the defendant’s driver, Murphy, was employed by it as a driver of one of the wagons used by it in the meat business which it carried on; desiring to extend their business premises, it employed masons and hod-carriers to erect the necessary brick walls of the new addition-to its premises. Plaintiff was one of the hod-carriers so employed, and while employed in that work, he was, by the careless manner in which Murphy acted, thrown from a ladder which was used by him and others employed in the erection of the building mentioned, and severely injured.

Murphy drove his truck against the ladder while plaintiff was in the act of descending, causing it to fall as well as plaintiff; under the circumstances, to contend that these men were in the same common employment and were fellow servants is an absurdity in our opinion. Mo error was committed at the trial, and judgment is affirmed, with costs.

McCarthy and Hascall, JJ., concur.

Judgment affirmed, with costs. >j