Sweeney v. New York Steam Co.

6 N.Y.S. 528, 15 Daly 312, 25 N.Y. St. Rep. 598, 1889 N.Y. Misc. LEXIS 667

• Court: New York Court of Common Pleas
• Decided: June 3, 1889
• Status: Published

Opinions

Bookstaver, J.

I cannot concur in the opinion of the learned chief judge

in this case. Assuming, for the present, that the evidence conclusively establishes that the deceased’s leg became entangled in the guy-rope managed by him entirely through his own negligence or inexperience, and as a result he was hoisted, head downwards, from 10 to 15 feet above the deck of the boat on which he was working, it would not necessarily follow that his representatives could not recover in this action; for it is well settled that an injured party or his representatives may recover damages for an injury caused by defendant’s negligence, notwithstanding the injured party’s own negligence exposed him to the risk of the injury, if such injury was proximately caused by the defendant’s omissions to use ordinary care for the purpose of avoiding the injury, after being aware of the danger. Austin v. Steam-Ship Co., 43 N. Y. 81; Silliman v. Lewis, 49 N. Y. 383; 1 Shear. & R. Neg. (4th Ed.) § 99, and authorities there cited.

The question then is whether the deceased’s injuries were proximately caused by his own negligence, or by the negligence of defendant or its servants. Conceding his suspension was caused by his own act, he did not fall because his weight drew his foot through the coil of rope by which he was suspended, nor did he fall because of any exertion on his part, either of which would have been his own act, and the proximate cause of his falling, nor did he fall because the machinery employed was not calculated, and could not reasonably have been required, to support his additional weight. The learned chief justice himself says the deceased hung suspended for a short time, and “was unable to slide down the rope because it was wound around his leg.” So his falling into the hold of the boat, and consequent injuries, were not, and could not have been, proximately caused by his suspension; those arose from the rapidity with which he had dropped into the hold. But the carelessness of the deceased in the management of the guy-rope, by which he became entangled, is the only negligence of the defendant relied on by the learned chief judge to defeat his recovery. Counsel for the appellant, upon the argument, also claimed that if the lad in charge of the engine was so notoriously unfit for the duty assigned him, then it was negligence on the part of Hanlon in giving the direction to “lower him easy.” But granting that he was incompetent, there is no evidence in the case tending to show that the deceased knew of this, for he had been at work for the defendant not more than 20 minutes when the accident happened, and consequently knowledge of incompetence will not be assumed in the absence of some proof of it. It was also claimed that the injuries resulted from the carelessness of a co-servant, for which the defendant is not liable. But a master owes the duty to his servants of employing skillful and competent workmen where these are needed to direct their labor, or assist in the performance of their work, and the servants have a right to assume that only such workmen are employed. Pantzar v. Mining Co., 99 N. Y. 368, 2 N. E. Rep. 24; Booth v. Railroad Co., 73 N. Y. 38; Abel v. Canal Co., 103 N. Y. 581, 9 N. E. Rep. 325, and many cases which might be cited.

I therefore think the trial judge was right in refusing to dismiss the complaint upon defendant’s motion, either when plaintiff rested or at the close of the case, and in leaving the question of the defendant’s negligence to the jury, as he was bound to do, and that the instructions given it on that subject were correct. Mor can I find any error in the judge’s charge respecting the negligence of the defendants. He refused to charge “that there is no evidence of any notice to the defendant, or to any of its officers responsible for its general conduct, of the fact, if it be a fact, that the boy Crowley was allowed by the engineer to have charge of the engine.” But he had already fully and correctly charged the jury on this point when he said: “If they [the company] employed a competent engineer, and they did not know he was transferring his duties to somebody else, they would not be liable; but if they permitted an incompetent person to share the duties of an engineer, then they would be liable. Baker and the engineer were, of course, not laborers like the deceased and Carroll and Nelliker. Their grades of employment were different, but they were, nevertheless, fellow-servants, and the negligence of a fellow-servant is one of the risks of the employment which every employé takes. It is the negligence of the master that must be established to make the master liable. ” And also defendant’s request that if no notice was given to or received by an officer of the defendant, responsible for its general conduct, that the boy Crowley was running the engine, the plaintiff cannot recover. The request was also improper because it required the court to say that there was no evidence of any notice, whereas there was some proof upon that subject which brought it within the province of the jury to determine the fact, and it was not the province or duty of the court to do it for them.

The other exceptions to the charge are sufficiently noticed in what has been before said. They are based either upon the original negligence of the deceased, which as I think was not the proximate cause of the injuries, or upon the negligence of his fellow-servant, or upon the absence of proof when there was some evidence to go to the jury. The exceptions to the admission or rejection of evidence seem to me to be equally untenable, and the judgment should therefore be affirmed, with costs.

Allen, J., concurs.