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Nugent v. Atlas Steam-Ship Co.

3 N.Y.S. 861 Court N.Y. Sup. Ct. Decision date 1889-01-28 English

Delivered by Babtlett, J.

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p. 861
Nugent v. Atlas Steam-Ship Co., Limited.
(Supreme Court, General Term, First Department.
January 28,1889.)

Headnote

Master and Servant—Negligence of Fellow-Servants—Employe of Contractor..
Plaintiff, while engaged in painting defendant’s vessel, being employed by a firm who had contracted to paint it, under a contract providing that defendant should furnish ropes for the staging, was injured by the fall of staging caused by the breaking of a rope. It appeared that the staging was erected by other employes of' the firm; that while they were so engaged a few ropes were brought to them which were unfit for use, when a servant of defendant told them to use what ropes, they could find, and that they then used the rope which afterward broke, which was part of the ship’s rigging, and was obviously defective,—its condition not being noticed, though the man who used it testified that he was familiar with ropes. It was not shown that any agent of defendant pointed out this rope as fit to be used. Held, that defendant was not liable, even if the action of its servant amounted to a. refusal to furnish proper ropes, the injury being caused solely by the negligence-of plaintiff’s fellow-servants.
Appeal from circuit court, New York county.
Action by Dennis Nugent against the Atlas Steam-Ship Company, Limited. Judgment for plaintiff, defendant’s motion for a new trial denied, and it appeals.
Argued before Beady, Daniels, and Babtlett, JJ.
Everett P. Wheeler, for appellant. Georye M. Curtis, for respondent.

The plaintiff was injured by the fail of a scaffold while engaged in painting the defendant’s steam-ship Alhos. He was not in the em

p. 862
ploy of the defendant corporation, but was working for a firm of painters 'who had entered into a Contract to scrape and paint the vessel. That contract provided that the ropes to sustain the second tier of staging should be ■furnished by the defendant. Its language on this subject was in these words: “Ship to furnish ropes for the second tier of staging.” The staging was erected by one Joseph Wilson, with the assistance of from four to six other men, who like himself were employed by the firm of painters. In putting it up he used a rope known to sailors as a “trysail vang,” which was ordinarily a part of the running rigging belonging to the ship. According to Wilson’s own testimony, a few ropes were brought on deck which were not good or fit to use, and thereupon the defendant’s shore boatswain or rigger, James Squires, told him and his companions that they could use what ropes they could find. They then took the trysail vang, which proved insufficient to support the second tier of staging with the painters at work upon it, and broke under their weight, thus allowing the staging to fall upon the plaintiff, and injure him severely. The undisputed testimony indicated that this try-sail vang was not only unfit to be used for the support of the scaffold, but that its insufficiency was apparent externally, and ought to have been obvious to any one accustomed to the use of ropes, as a rigger or sailor. Wilson seems to have used it, however, without observing its defective condition, although he testified that he was somewhat familiar with ropes, having been to sea for about 20 or 22 years. Ho attempt was made to show that any agent of the defendant pointed out this particular piece of rope as a suitable support for the staging, but the theory of the plaintiff’s case seems to have been that the painters were led to believe that it was sufficient by the general direction from the shore boatswain to use what ropes they could find, after they had rejected those which had first been brought on deck.

While no contract relation existed between the defendant corporation and the plaintiff who was injured, the defendant owed him certain obligations .arising out of its contract with his employers, who had undertaken to paint the ship. In furnishing the ropes for the support of the second tier of staging under the contract, the defendant was bound to exercise reasonable care to provide ropes which should be free from dangerous defects; and, for a failure to exercise this care, the defendant would be liable to a person in the employment Of the other party to the contract. Devlin v. Smith, 89 N. Y. 470 , 477. “As a general rule,” says the court of appeals in the case cited, “the builder of a structure for another party, under a contract with him, or one who sells an article of his own manufacture, is not liable to an action by a third party, who uses the same with the consent of the owner or purchaser, for injuries resulting from a defect therein caused by .negligence. The liability of the builder or. manufacturer for such defects is in general only to the person with whom he contracted. But, notwithstanding this rule, liability to third parties has been held to exist when the defect is such as to render the article itself imminently dangerous, and serious injury to any person using it is a natural and probable consequence of its use.” In the present case it was manifest that the use of rotten rope as a support for one of the tiers of staging on which the painters were to stand would be fraught with danger to those who might be upon it or beneath it. If, therefore, a representative of the defendant had either furnished this particular trysail vang as a fit and proper rope to be used for the purpose to which it was applied, or if he had indicated a lot of ropes, of which this was one, as similarly suitable, and in consequence of such indication it had subsequently been employed by the painters in the manner in which it was employed, we think the defendant would have been liable to the plaintiff in the action; assuming that the defect in the rope was not so apparent as to make it negligence on the part of the painters not to detect its true condition. But the case made out by the plaintiff is quite different. The painters appear to have refused to use any

p. 863
of the ropes in the lot brought on deck at the instance of the defendant’s ■shore boatswain, and by him indicated as being suitable and sufficient. Then, .according to their account, they were told by the shore boatswain to take what they could about the deck. In this direction there was no expression of suggestion or indication that particular rope, or set of ropes, about the deck was .sufficient or proper to be used for the support of the scaffolding in question. It was tantamount to saying to the painters that, inasmuch as they were not .satisfied with those ropes which had been shown them in the first place, they might choose for themselves from such others as they could find. It may be ■said that this was practically a refusal to furnish the ropes.at all, and therefore a breach of the defendant’s contract; but, even if it was, that would not render the defendant liable to this plaintiff. The defendant having utterly failed or refused to furnish any other ropes than those which the painters deemed unsuitable, if they went on to choose and take one for themselves without any assurance as to its suitability from the defendant, the latter cannot be held liable because their choice proved unfortunate. Under the circumstances disclosed by the record in this case, we think the negligence which caused the plaintiff’s injuries was solely that of his fellow-servants, and therefore that the recovery in his favor against the defendant cannot be sustained. Judgment reversed, and new trial ordered, with costs to appellant, to abide the event. All concur.

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