p. 310John Gillen, Appellant, v. James McAllister and Others, Doing Business under the Firm Name of “ McAllister Brothers,” Respondents.Headnote
Negligence — injury from the lowering of merchandise upon a lighter — carelessness of a third person, allowed by a coemployee of the person injured to operate the engine — the master is not liable — employment of one licensed to run a ma/rine engine to operate a stationan-y one.In ah action brought to recover damages for personal injuries, it appeared that the plaintiff was employed by the defendant upon a lighter which was being loaded with barrels of oil; that the barrels of oil were lowered from the dock to the lighter by means of a stationary engine operated by one Heifer, who was ■ also in the employ of the defendant and who was licensed as a marine engineer; that Heifer allowed a barge captain to operate the engine and that, in conse- > quence of the latter’s negligence in lowering a load of, barrels without receiving the signal to do so, and without warning, the load of barrels fell upon the plaintiff and crushed his leg.
Held, that, assuming that the barge captain’s negligence could be imputed to Heifer, the defendant would not be liable, in the absence of proof that Heifer was incompetent, as the plaintiff and Heifer were fellow-servants and a master is not responsible for injuries inflicted on a servant through the negli- , gence of a coservant engaged in a common employment unless the negligent servant was incompetent and such inqompetency was known or ought to have beemknown to the master;
That the fact that Heifer was licensed only as a marine engineer did not tend to show that he was incompetent to operate a stationary engine.
Appeal by the plaintiff, John Gillen, from á judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Kings on the 10th day of December, 1903, upon the dismissal of the complaint by direction of the court aftér a trial at the Kings County Trial Term.
Frederick W. Sparks, for the appellant.
George Gordon Battle and Frederick E. Fishel, for the respondents.
The complaint in this action’ alleges that the defendants were copartners, engaged in- operating steam derricks in and about New Fork harbor; that on the 3d day of July, 1901, the plaintiff was
p. 311•employed on one of the defendants’ lighters, loading barrels of oil from a dock in Hoboken, N. J., upon said lighter by means of a hoist operated by a stationary steam engine; that the defendants negligently and carelessly employed a person wholly incompetent .and unskillful in the operation of such stationary steam engine; that in the prosecution of the defendants’ business said incompetent and unskillful person allowed another incompetent and unskillful person to operate said stationary steam engine and negligently and ■carelessly caused two barrels of oil to be suddenly lowered without signal and without warning and to fall upon and crush the plaintiff’s right leg between the ankle and the knee. For the injuries thus sustained the plaintiff seeks in this action to recover damages against the defendants. At the close of the evidence offered in his behalf the complaint was dismissed, and the question for us upon this appeal is whether the facts proved, in the most favorable view which can be taken of them, entitled the plaintiff to have the case submitted to the jury.
A marine engineer named Heifer, in the employ of the defendants, had been engaged in operating the stationary engine for some time before the accident occurred. A stranger, whose name does not appear but who is described as the captain of a barge named the Ironton, came into the engine house and was allowed by Heifer to undertake the operation of the engine. While so doing he appears to have lowered the hoist without receiving any proper signal from the plaintiff to do so, thus allowing the load of barrels to fall upon the plaintiff and crush his leg. The evidence clearly suffices to make out a prima facie case of negligence' against this stranger, and the appellant seeks to impute his negligence to Heifer on the principle of those cases in which the master has been héld liable for the negligent act of an individual whom the servant has invited to aid him in the execution of a task imposed by the master. (Althorf v. Wolfe, 22 N. Y. 355 ; Kilroy v. D. & H. C. Co., 121 id. 22; Booth v. Mister, 7 Car. & P. 66.) But assuming that Heifer was negligent, this is not enough to make the defendants liable. The plaintiff and Heifer were fellow-servants in the employ of the defendants, who could not be held responsible for the negligence of one of their servants engaged in a common employment resulting in injury to another-, without proof that the servant whose
p. 312negligence inflicted the injury was incompetent, and that his incom-petency was known or ought to have been known to the master.
(Park v.
N. Y. Central & H. R. R. R. Co., 155 N. Y. 215 .) It appears that Keifer was licensed only as a marine engineer and that he held no license to operate a stationary engine. This fact, however, did not tend to show that he was incompetent.
(Smith v.
N. Y. C. & H. R. R. R. Co., 164 N. Y. 491 .) The testimony relied upon to establish his in competency is a declaration by him to the effect that he was not used, to running stationary engines, but would do the best he could. As matter of fact he did operate the engine successfully and without injury to any one, and no accident occurred until it was placed in charge of the captain of the barge
Ironton, as already stated. 1 am unable to find any evidence in the record from which it can be inferred, even if we assume that Keifer actually was incompetent, that the defendants were aware of that fact or chargeable with such knowledge. This defect in the proof, it seems to me, compelled the learned trial judge to dismiss, the complaint.
I think the judgment should be affirmed.
All concurred.
Judgment affirmed, with costs.