McCoy v. Empire Warehouse Co. — 10 N.Y.S. 99

Majority

p. 99

McCoy v. Empire Warehouse Co., Limited.

(City Court of Brooklyn, General Term.

May 26, 1890.)

Headnote

Master and Servant—Negligence op Fellow-Servants.

The neglect of employes in a warehouse to perform the duty assigned to them of _ covering the hatches in the different floors at the end of each day does not render their employer liable to an employe for injuries caused thereby.

Appeal from trial term.

Action by Bridget McCoy, as administratrix of Peter McCoy, against the Empire Warehouse Company, Limited, to recover damages for the death of her intestate while in defendant’s employ. From a judgment entered upon a non-suit plaintiff appeals.

Argued before Clement, C. J., and Van Wyck, J.

P. Keady, for appellant. Butler, Stillman & Hubbard, for respondent.

In the warehouse of defendant there were hatches or openings in each floor directly over each other, for the purposes of raising and. lowering merchandise. The contention of plaintiff is that Peter McCoy fell from the upper floor through these hatches," and thus was killed. Plaintiff insists that the fact that the doors or covers had not been placed over the hatches the night before was such negligence as rendered the defendant liable for the death of Peter McCoy. The evidence overwhelmingly establishes that it was the duty of Peter McCoy, James O’Eeil, and Antony Flaherty, three-employes of defendant, to cover the hatches in .question at the end of each day, which duty they failed to perform, though they were employed for that purpose, and were directed to do so. It is manifest that their neglect in that respect does not devolve upon defendant, their employer, liability to them, or either of them, for injuries caused thereby. The nonsuit was properly granted, and the judgment herein must be affirmed, with costs.