Lowman v. Pennsylvania Steel Co.

Judgment and order affirmed, with costs. J

(dissenting). This is a common-Í law action brought by servant against masteiy for personal injuries due to negligence. The master was the constructor of a bridge over waters. The servant at the time of the accident had quit work for the day, and was in a tugboat furnished by the master to carry his servants from one place to another for work . and to take them from their homes and to / them. The tug had gone but a short way from the dock when a plank fell from the bridge ] and struck the servant, who has recovered a f judgment for the injuries thus inflicted. I ! think that the relation of master and servant ) continued at the time of this accident. Gill s hannon v. Stony Brook Railroad Corporation, 10 Cush. (Mass.) 228 , cited in Vick v. N. Y. C. & H. R. R. R. Co., 95 N. Y. 267 , 47 Am. Rep. 36 , which also see; Thompson’s Comm, on Negligence, § 3751. The plank was one of a number which were to be laid for a temporary flooring of the roadway of the bridge. Thirty of them were placed on a small flat push car 6 feet long and 4 feet wide. Cross-ties 7 feet in length had first been laid- on the car, and these planks had been placed upon ' them. The load was about 2 feet high. Some; of the planks were warped, so that the load) was not as compact as if all were straight.] Four of the defendant’s servants unloaded the car, and of them Tinnesberg testifies that they had unloaded about one-third of the planks, when two or three fell off the car. He fur- ; ther testifies that he did not know “who knock- l ed them over,” that somehow or another they ) fell over, and that “there was no one else there I to do it except one of us four men.” The ■ learned trial court, without objection on the ; part of the plaintiff, submitted to the jury the sole question of the omission of the defendant to place stanchions on the car. The master ¡ is bound to furnish only such a machine or ap- ( pliance as is reasonably safe and proper, inasmuch as he is liable, not for error of judgment but for negligence. Harley v. Buffalo Car Manufacturing Co., 142 N. Y. 31 , 36 N. E. 813 ; Marsh v. Chickering, 101 N. Y. 396 , . 5 N. E. 56 ; Burns v. Old Sterling I. & M. Co., 188 N. Y. 175 , 80 N. E. 927 ; Quigley v. Levering, 167 N. Y. 58 , 60 N. E. 276 , 54 L. R. A. 62 . I think that the evidence for the plaintiff £ did not justify a conclusion of negligence in L the omission to provide stanchions for the car. b The plaintiff called but a single witness upon f this question. He had been engaged for 161 years in bridge and structural iron work, and I was in his own words an “all around man”"

•CARR, J., concurs.