McDermott v. Daniell — 121 A.D. 736

Majority

p. 736

Bella McDermott, an Infant, by Ann McDermott, Her Guardian ad Litem, Respondent, v. John Daniell and John Daniell, Jr., Appellants.

First Department,

November 8, 1907.

Headnote

Master and servant — negligence — employment of incompetent fellow servant.

In an action by a servant to recover for personal injuries when the,'negligence charged against the master is the employment' of an incompetent feildw-servant, the plaintiff must show incompetericy by'specific acts, and -that the master knew or ought to have- known of the incompetency; ‘

When the plaintiff shows no specific 'act of incompeteñcy by the fellow-servant,' whom the defendant had employed for-seventeen years, mere proof of an alleged admission by the master a year after the accident, but denied by him, that the fellow-servant was “careless” is hot sufficient to establish negligence.

p. 737

Appeal by the defendants, John Daniell and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17tli day of November, 190'6, upon the verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the 6th day of December, 1906, denying the defendants’ motion for a new trial made upon the minutes.

William J. Underwood, for the appellants.

Abraham Levy, for the respondent.

Plaintiff, who was a saleswoman in defendants’ employ, was injured by being hit on the head by an advertising sign which had been suspended from a balcony above her head. The frame had apparently been dislodged by a coemployee who was at the time engaged in repairing a cash trolley which had gotten out of order.

The only negligence charged against defendants is'that they had retained in their employ an incompetent servant, knowing him to be incompetent, and that it was in consequence of his incompetence that the accident occurred.

The respondent concedes the general rule in, this State to be as declared in Park v. N. Y. C. & H. R. R. R. Co. ( 155 N. Y. 215 ), and many other cases, that in an" action like the present the plaintiff, in order to succeed, must show iricompetency by specific acts of the servant, and that the master knew, or ought to have known, of such incompetency. The respondent does, not attempt to bring herself within the rule, and gave no evidence of any specific act of incompetency on the part of her coemployee. She attempted to supply this lack of prooí by saying that about a year after the accident, one of the defendants said in a conversation with her: “Yon see this Mr. Ellis (the coemployee) is a careless- man ■* * * and he is always doing things like that.” In this she was corroborated by her sister. This conversation 'is denied by the defendant, and seems to me to be wholly improbable. • Ellis had been continuously in defendants’ employ for some seventeen years,

p. 738

and it is not at all likely .that he would have been- retained for that length of time if he had-been uniformly careless and incompetent. Ho other similar accident is charged against him, and both lie and his-employer say that none other had happened. Furthermore the statement, even if made, that .he was careless falls short of showing that he was incompetent. Finally .the evidence, failed to show, negligence on the. part of the coemployee Ellis. The wire that required fixing ran along parallel to the balcony and a few feet from 'it. Ellis climbed over the railing of the balcony, and put one foot on a little iron pipe running out to the upright that carried tlie cash carrier. In reaching for thé wire lie- lost his balance and" swung in to -the balcony,'his left foot apparently dislodging the advertisement. This was the method he usually employed to reach the wire when anything was required to be-done near the balcony, and it is not shown to. have been a negligent or. improper method. .He used a stepladder sometimes to reach the wire,-but this was only' when the wire to be reached was in the center of the store where there is no-balcony. The complaint should have been dismissed.

' The judgment and order should be reversed, and a new trial granted, with costs to appellant to abide the event.

Patterson, P. J., Ingraham, Clarke and Lambert, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant tó abide event.

Cases cited

Park v. New York Central & Hudson River Railroad 155 N. Y. 215 N.Y. 1898-03-01 p. 737