Tomachio v. Carter & Weeks Stevedoring Co.

Headnote

Negligence —■ master and servant — injury to workman through negligence of fellow-servant — when complaint properly dismissed.

Tomachio v. Carter & Weeks Stevedoring Co., 204 App. Div. 834 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 29, 1922, affirming a judgment in favor of defendant entered upon á dismissal of the complaint by the court at a Trial Term in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant, his employer. Plaintiff was assisting in loading iron beams into a vessel. The work was conducted by means of a winch which lowered the beams into the hold. The plaintiff claimed that the winch, although suitable for the work in hand, was unsafe and improper to do the work because it had been wound and set up to be operated in the reverse of the customary method, and so an undue burden was placed upon the winchman who was not accustomed to working a winch in that manner, and that because of this plaintiff’s working' position became unsafe. The winch-man operating the machine was on the deck; the plaintiff and other employees were in the hold out of his sight; when the winchman was notified to slack the rope which was attached to the beam in the hold, he made a mistake and tightened the rope, which caused the beam to fall and" injure plaintiff. The complaint was dismissed on the ground that plaintiff received his injury through the negligence of a fellow-servant.