McGourty v. Curran — 34 N.Y. St. Rep. 494

Majority

p. 494

Frank McGourty, Resp’t, v. John Curran and Robert T. Mills, App’lts.

(City Court of Brooklyn,

General Term,

Filed November 24, 1890.)

Headnote

Master and servant—Negligence.

Plaintiff, while in defendants’ employ, was injured by the breaking of a rope which he was using. The evidence as to the condition of the rope was conflicting. Reid, that the question of defendants’ negligence was. one of fact for the jury and their verdict conclusive.

Appeal from judgment in favor of plaintiff, and from order denying motion to set aside the verdict and for a new trial.

■ Action to recover damages alleged to have been caused by defendants’ negligence. Plaintiff was in the employ of defendants, who are contractors carrying on work at the railroad cut at Thirty-eighth street, Brooklyn, and bad charge of a guide rope fastened to the tackle used to hoist tubs containing broken stone. While he was standing on a car using the rope, it broke and he fell to the ground and was injured. The evidence as to the condition of the rope was conflicting, plaintiff’s being to the effect that the rope was full of knots and about played out, and defendants’ that it was good.

The exceptions referred to in the opinion were to refusals to charge as follows:

To render the defendants liable, it must appear that they knew, or from the nature of the case ought to have known, of the unfitness of the tag rope furnished to the plaintiff, and that the plaintiff did not know, or could not reasonably be held to-have known, of the defect. Knowledge on the part of the employer, and ignorance on the part of the employee, aire of the-essence of the action.

If the plaintiff knew that the rope was worn, and neglected to procure a new one from the defendants’ store-house, and continued to work with the old one, he cannot recover in this action.

It was the plaintiff’s duty, as soon as he discovered that the

p. 495

rope was worn, to inform the defendants or their foreman, and he had no right to continue to work with the rope in this condition and expose himself to danger because of it.

Charles O. Nadal, for app’lts; Patrick Ready, for resp’t.

We have carefully examined the record in this case and conclude that the questions involved were purely of fact. As to the quality and condition of the rope, the testimony was conflicting; and the verdict of the jury was conclusive that the defendants failed to perform the duty which the law placed upon them, and that the plaintiff was injured through the neglect •of the defendants and without carelessness on his part. The case is similar to that of Mikkelsen v. The Ocean & Inland Transportation Co., 9 N. Y. Supp., 741 ; 81 N. Y. State Rep., 408, and our opinion in that case is in point.

The exceptions at folios 178 and 179 were not well taken.

Judgment and order denying new trial affirmed, with costs.

Clement, Ch. J., and Osborne, J., concur.