Smith v. Brady — 136 A.D. 665

Majority

p. 665

John F. Smith, Respondent, v. John Brady and Michael Gioe, Appellants.

Second Department,

March 4, 1910.

Headnote

Negligence — liability of contractor to employees of other contractor.

Where several independent contractors are doing work in connection, with the unloading of a ship, each of them owes to the employees of the other a duty to exercise due care in the performance of his work.

Under such circumstances a contractor is not merely required to refrain from willful, wanton or intentional injury. .

The employee of a ship’s cooper working in a vessel may recover of a stevedore engaged in unloading the cargo for injuries received by reason of his negligence in failing properly to pile the goods removed..

Appeal by the defendants, John Brady and another, from a judgment of the Supreme Court in favor of tile plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of May, 1909, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office .on the same day, denying the defendants’ motion for a new trial made upon the minutes.

p. 666

G. Glenn Worden [James B. Henney with him on the brief],for the appellants.

Bruce R. Duncan, for the respondent

The judgment recovered by the plaintiff is for personal injuries sustained while he was at, work on a steamship which was being unloaded at a pier in the East river. He was working at the time for a ship’s cooper. The cargo of the vessel was raw sugar stored in bags, and the plaintiff was engaged in sewing and mending torn bags. The hags when filled weighed from 320 , to 380 pounds each, and they were stowed to a height of upwards of twenty feet. The plaintiff was working for his employer in the • main hatch of the vessel, which adjoined the bunker hatch with no partition between them. The defendants were engaged, as stevedores in unloading a part of the cargo, and the plaintiff’s injuries arose from the fact that in the process of unloading, the bags in-the bunker-hatch were left so as to overhang, and a number of' them fell upon the plaintiff by reason of that fact. The jury has found on sufficient evidence that the plaintiff was free from contributory negligence. The' defendants claim that they had no contract to unload the bags in the hunker liatclq and that as a matter of fact their workmen did not touch them. There was evidence, however, to the contrary, and that question of fact was fairly' submitfed to the jury and has been resolved in plaintiff’s favor. The main question presented on the appeal arises from the claim of the defendants that the plaintiff, as a workman in the employ of an independent contractor, was in respect to the defendants and their workmen a licensee only, and that the defendants’ duty was limited to abstinence from the infliction of willful, wanton or intentional injury. The learned trial court held, however, that the defendants owed to the plaintiff the duty of exercising ordinary care in the -performance of their work, and that for an injury resulting from the want of such caiie. they would be, responsible on the doctrine of respondeat superior:

I think the rule laid down by the trial court was correct. In Bill v. New York Expanded Metal Co. ( 60 App. Div. 470 ) it was held-that where several independent contractors are working on

p. 667

a building, each of them owes to the employees of the other contractors a duty to exercise due care in performing his work if it might othei'wise be a source of danger to such employees while lawfully engaged in their work on the building. Mr. Justice Jenks, writing for the unanimous court, says (p. 471): “ The fact that there was no contract relation between plaintiff and defendant did not deprive the former of a cause of action. For there was an obli- • gation upon the defendant to exercise due care while doing its work, if it might otherwise be a source of danger to the plaintiff while lawfully engaged in his own work upon the building. ( Wittenberg v. Seitz, 8 App. Div. 439 ; Reilly v. Atlas Iron Construction Co., 83 Hun, 196 ; S. C., 3 App. Div. 363 .)” (See, also, Bishof v. Leahy, 54 App. Div. 619 ; Wells v. Brooklyn Heights R. R. Co., 67 id. 212; O Rourke v. Waite Co., 125 id. 825.)

The judgment and order should be affirmed.

Present—Hirschberg, P. J., Jenks, Btjrr and Caer, JJ.

Judgment and order unanimously affirmed, with costs.

Cases cited

Wittenberg v. Seitz 8 App. Div. 439 N.Y. App. Div. 1896-07-30 p. 667
Reilly v. Atlas Iron Construction Co. 3 App. Div. 363 N.Y. App. Div. 1896-04-07 p. 667