Olson v. Clyde

39 N.Y. Sup. Ct. 425

• Court: New York Supreme Court
• Decided: May 15, 1884
• Status: Published

Opinion

Peatt, J.:

It is argued for the appellant that as the master of the vessel is alleged to have been on deck superintending affairs at the time the negligent order was given, his assent and approval must be assumed and the order be regarded as his own. This by no means follows. It is not alleged that the master had personal knowledge of the order complained of. It is not possible for the officer in charge of the deck of a steamer to personally hear every order given on a distant part of the vessel. If in fact he heard it and ratified the order by his silence, that should have been distinctly alleged by the pleader if deemed material.

It is argued that as plaintiff was a seaman, bound to obey the orders of his superior officers and liable to punishment by law if he refused obedience, he is removed from the operation of the rule that, he cannot recove r for the negligence of a co-employe.

Although the peculiar relations of the common seaman to his superior officers may relieve him from being charged with contributory negligence in obeying an order which 'exposes him to peril, we do not think the effect of these relations extends so far as to enable him to recover for the negligence of a co-employe.

The master of a vessel may be the alter ego of the owners, but the mate, when the master is on board, is not an alter ego. Though of superior grade and with power to compel obedience, he is yet a fellow servant, and for his negligence a co-employe cannot recover. The general rule is still in force and the action must therefore fail. (Wright v. N. Y. Central Railroad, 25 N. Y., 565.)

The judgment should be affirmed.

Present— BaeNAed, P. J., DykmaN and Peatt, JJ.

Order sustaining demurrer to plaintiff’s complaint affirmed, with costs.