McCoy v. Empire Warehouse Co. — 31 N.Y. St. Rep. 815

Majority

p. 815

Bridget McCoy, Adm’rx, App’lt, v. The Empire Warehouse Co., Limited, Resp’t.

(City Court of Brooklyn, General Term,

Filed May 26, 1890.)

Headnote

Master and servant—Negligence oe co-employee.

Plaintiff’s intestate was killed by falling through an open hatchway in defendant’s warehouse. It appeared that deceased and two co-employees were charged with the duty of covering the hatchways at night, which they failed to do. Held, that their neglect in that respect did not devolve on defendant, their employer, liability- to either of them for injuries caused thereby.

Appeal from judgment dismissing complaint.

Action to recover $5,000 damages for injuries resulting in the

p. 816

death of plaintiff’s intestate alleged to have been due to the carelessness and negligence of defendant and its servants. Plaintiff was employed in defendant’s warehouse and while opening it on the morning of Monday, September 16, 1889, he fell from the fifth floor through the hatchways and was killed. The testimony showed that he and two others were the men to close these hatchways at night and that they had left them, open the Saturday night previous.

P. Heady, for app’lt; Butler, Stillman & Hubbard, for resp’t.

In the warehouse of defendant there were hatches or openings in each floor directly over each other, for the purpose of raising and lowering merchandise. The contention of plaintiff is that Peter McCoy fell from the upper floor through these hatches and thus was killed. . Plaintiff insists that the fact that the doors or covers had not been placed over the hatches the night before was such negligence as rendered the defendant liable for the death of Peter McCoy. The evidence overwhelmingly establishes that it was the duty of Peter McCoy, James O’Neil and Antony Flaherty, three employees of defendant, to cover the hatches in question at the end of each day, which duty they failed to perform though they were employed for that purpose and were directed to do so. It is manifest that their neglect in that respect does not devolve upon defendant, their employer, liability to them or either of them for injuries caused thereby.

The non-suit was properly granted and the judgment herein must be affirmed, with costs.

Clement, Ch. J., concurs.