McTaggart v. Eastman's Co. — 57 N.Y.S. 222

Majority

p. 222

(27 Misc. Rep. 184.)

McTAGGART v. EASTMAN’S CO. OF NEW YORK.

(City Court of New York, General Term.

March 28, 1899.)

Headnote

Fellow Servants.

Where defendant was in the meat business, and employed plaintiff as a hod carrier in erecting an extension to his premises, and the driver of one of defendant’s meat wagons ran against the ladder while plaintiff was, descending, Injuring him, plaintiff and the driver were not fellow servants. ■

p. 223

Appeal from trial term.

Action by Daniel McTaggart against Eastman’s Company of New York. Judgment for plaintiff. Defendant appeals.

Affirmed.

Argued before FITZSIMONS, C. J., and MCCARTHY and HAS-CALL, JJ.

Nadal; Smyth, Carrere & Trafford, for appellant.

Thos. O’Sullivan, for respondent.

The testimony clearly shows that, although the plaintiff and James Murphy were both employed by defendant, yet they were not in the same common employment. They were servants of defendant, but were not fellow servants. The defendant’s driver Murphy was employed by it as a driver of one of the wagons used by it in the meat business which it carried on. Desiring to extend its business premises, it employed masons and hod carriers to erect the necessary brick walls of the new addition to its premises. Plaintiff was one of the hod carriers so employed, and while engaged in that work he was, by the careless manner in which Murphy acted, thrown from a ladder which was used by him and others engaged in the erection of the building mentioned, and severely injured. Murphy drove his truck against the ladder while plaintiff was in the act of descending, causing it to fall, as well as plaintiff. Under the circumstahces, to contend that these men were in the same common employment, and were fellow servants, is an absurdity, in our opinion.

No error was committed at the trial, and judgment is affirmed, with costs. All concur.