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Mikkelsen v. Ocean & Inland Transportation Co.

31 N.Y. St. Rep. 408 Court Brooklyn City Ct. Decision date 1890-05-03 English

Delivered by Clement, Ch. J.

Contents

Majority

p. 408
Louis Mikkelsen, Resp’t, v. The Ocean & Inland Transportation Co., App’lt.
(City Court of Brooklyn, General Term,
Filed May 3, 1890.)

Headnote

1. Master and servant—Negligence.
Plaintiff, while working for defendant, was injured by the breaking of a rope. Three witnesses for plaintiff testified that the rope was only three inches thick, while three for defendant testified it was not less than four inches. It was admitted that a three inch rope was not suitable for the work. Held, that the question of defendant’s negligence was one of fact and was properly submitted to the jury.
8. Same—Contributory negligence.
A servant is not called upon to test appliances and is not assumed to have the same knowledge and skill as the master.
Appeal from judgment in favor of plaintiff, entered on verdict of a jury.
Action to recover damages for alleged negligence of defendant. Plaintiff was a seaman in the employ of defendant, and at the time of the accident was engaged under the direction of its foreman in dismantling a vessel. YTLile taking down the topmast he was injured by the parting of a rope used for that purpose. The alleged negligence consisted of a failure to furnish a proper rope.
J. BJ. Bwanstrom, for resp’t; John Berry, for app’lt.

We are rof opinion that the questions involved in this case were of fact, and that the learned trial judgp properly instructed the jury as to the law applicable to the facts of the case. The defendant’s counsel moved to dismiss, at the end of the testimony in behalf of the plaintiff, and at the conclusion of the trial, and excepted to the denial of the motions, and there are no other exceptions in the case.

The counsel for the defendant requested the court to charge that the master is not bound to furnish the best known appliances, that he is bound only to furnish such as are reasonably safe, which request was charged. There were three witnesses for the plaintiff who testified that the rope which was furnished was only 'three inches in thickness, and three witnesses for the defendant testified that it was not less than four inches, and the only question as to the negligence of the defendant was whether the vape was of the size testified to by the witnesses for the plaintiff, or the defendant, for the reason that the witnesses for the defendant conceded that a three inch rope was not suitable to use in the work at which plaintiff was engaged when he was injured. Gapt. Littlefield said that he furnished a four and one-half inch rope, but he also says that the rope which broke was the one he fur

p. 409
nished. The question of the negligence of the defendant was clearly one of fact, and therefore was properly submitted to the jury.

... The question of contributory negligence was also one of fact. The plaintiff had a right to assume that the master had performed the duty which the law imposed on him, and the servant is not called upon to test appliances, and is not assumed to have the same knowledge and skill as the master.

The verdict was not against the weight of evidence," as there' were the same number of witnesses for plaintiff as for the defend-,' ant, and within the authorities the damages were not excessive. Judgment and order denying a new trial affirmed, with costs. Osborne, J., concurs.