Kilroy v. President of the Deleware & Hudson Canal Co. — 16 N.Y. St. Rep. 873

Majority

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Lawrence Kilroy, Resp’t, v. The President, etc., of The Deleware and Hudson Canal Co. App’lts.

(New York Superior Court., General Term,

Filed June 20, 1888,)

Headnote

1. Negligence—Evidence of custom as to unloading canal boat— Competent—master and servant.

On the trial of an action for damages for injuries to the plaintiff, resulting from the alleged negligence of the defendant, it appeared that a stevedore was employed to unload the coal from defendant’s boat, and that the derrick with its appurtenances used for that purpose, was the property of such stevedore. The plaintiff was employed by the stevedore, and was shoveling coal in the boat when he was injured by the falling of a portion of the derrick, which was caused by the giving of a signal at the improper time by the person tending to the guy rope, which person had been employed by the captain of the boat. Held, that it was competent to show that the unloading was to proceed according to a certain custom, which was for the captain of the boat or somebody specially designated by him for that purpose in the interest of the boat,- to attend to the guy rope and to direct the movements of the boy who managed the hoist horse. Per Freedman, J.

2. Same—Employment of stevedore not inconsistent with captain of boat tending guy rope.

The employment of the stevedore and his derrick was not inconsistent with the captain of the boat, being the servant and agent of the defendant in the management of the guy rope.

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Appeal by defendants from judgment entered upon the verdict of a jury, and from order denying defendant’s motion for a new trial.

James O’Brien, a stevedore, was employed by the party ■ owning the coal on a certain canal boat of the defendant company to unload said coal. He used his own derrick and rig for hoisting the coal, and furnished the horse and boy that drove it. The plaintiff and another were employed by said stevedore, and were in the boat and shoveled the coal into tubs which, when filled, were hoisted and the coal dumped into the cart standing on the dock. After the work had proceeded about half a day, the accident resulting in the injury happened. A tub had just been lowered to the plaintiff; who undid the hook and swung it over to his fellow workman for him to attach it to the tub which he had filled. Before it had been fastened to that tub the signal was given for the hoist horse to start, and the hook caught in one of the cross beams and resulted in the derrick breaking, a part of which fell upon the plaintiff, causing the injury. At the time a boy was tending the guy rope and gave the signal; he had been tending it for some time at the request of the captain of the boat.

Matthew Hale and Frank E. Smith, for appl’ts; Louis F. Post and Samuel Ashton, for resp’t.

Although James O’Brien was employed as a stevedore to unload the coal from defendant’s boat, and the derrick with its appurtenances used for that purpose was the property of such stevedore; yet it was competent to show that the unloading was to proceed according to a certain custom for the captain of the boat, or somebody specially designated by him for that purpose, in the interest of the boat to attend to the guy rope, and to direct the movements of the boy who managed the hoist horse.

In the case at bar, evidence was given that pursuant to such custom the captain of the defendant’s boat did undertake to attend to the guy rope, and to direct the movements of the boy and the horse, first in person, and after-wards by a substitute, and that plaintiff’s injuries were caused by the manner in which said substitute performed the assumed duty.

The evidence was submitted to the jury with instruction to the effect that if, in what he did, the captain acted as the servant of O’Brien, the plaintiff could not recover, but, if he acted as the servant of defendant’s company, the company was chargeable with his negligence and the negligence of the person whom he substituted in his place. The jury were also instructed that the plaintiff could not recover unless the •injuries which he sustained were the natural and proximate result of negligence chargeable to the defendants. There was no error in such submission. Indeed, the charge as a

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whole fully and fairly guarded every right of the defendants in every aspect of the case.

Upon the whole case no exception appears which constitutes ground for reversal.

The judgment and order should be affirmed with costs.

I am of the opinion that the employment of the stevedore and his derrick was not inconsistent with the captain of the boat being the servant and agent of the defendant in the management of the guy rope. The captain, as a witness for defendant, testified: “ It is part of my duty as captain of the boat to handle the guy rope.”

Under the circumstances of the case, the jury could rightly find that the authority of the captain was not confined merely to holding the guy, but was more general in respect of its entire management, so that he had authority to give its care and handling to a third person, and thereupon became an agent of the defendants, and whose negligence, if that occurred, was to be imputed to the defendants.

I think that no exception was taken which calls for a reversal of the judgment, and that it and the order appealed from should be affirmed, with costs.