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McIlease v. James F. Meehan Co.

125 N.Y.S. 546 Court N.Y. App. Term Decision date 1910-11-11 English

Delivered by BIJUR, J.

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p. 546
McILEASE v. JAMES F. MEEHAN CO.
(Supreme Court, Appellate Term.
November 11, 1910.)

Headnote

Master and Servant (§ 265*)—Injury to Servant—Negligence.
Where, in an action for injuries to a servant while hoisting a bucket of mortar by means of a pulley, caused by mortar striking him in the eye, there was no evidence as to how the mortar fell, or anything on which to predicate negligence of the master, the master was as a matter of law not liable for the injury.
[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 265.*}
Appeal from Municipal Court, Borough of Manhattan, Fifth District.
Action by Daniel Mollease against the James F. Meehan Company. From a judgment for plaintiff, and from an order denying a motion for new trial, made on the minutes at the close of the case, defendant appeals.
Reversed, and complaint dismissed.
See, also, 113 N. Y. Supp. 489 .
Argued before SEABURY, PAGE, and BIJUR, JJ.
James I. Cuff (Herbert McKennis, of counsel), for appellant.
John McLaren, for respondent.

Plaintiff testified that while working as a laborer for the defendant he was directed to hoist a bucket of mortar by means of a rope and pulley hung in an areaway. As he considered the place dangerous, he was told by a representative of the defendant to stand inside and stick his head out of the window, and that there would be no danger in that case. The plaintiff testifies that some mortar struck him in the eye, causing him to be blind in one eye.

On a previous appeal to this court, it was held that no negligence “could he predicated on the ground that the defendant did not furnish a safe place to work or did not furnish proper appliances.” Plaintiff now contends that defendant’s assurance that he was free from danger relieves him from any charge of contributory negligence, and that it cannot be argued that he assumed any risk. Even so, there is no evidence in the case as to how the mortar fell, as ho whether it fell from his bucket or from elsewhere, or anything on which to predicate negligence on the part of the defendant.

Judgment reversed, with costs, and complaint dismissed, with costs. All concur.