Nugent v. Atlas Steamship Co. — 40 N.Y. St. Rep. 927

Majority

p. 927

Dennis Nugent, App’lt, v. The Atlas Steamship Co., Resp’t.

(Supreme Court, General Term, First Department,

Filed October 16, 1891.)

Headnote

FTegligence—Fellow servants.

Plaintiff was employed by a Arm of painters, who were engaged in painting one of defendant’s ships, and was injured by the fall of a scaffold, caused by the breaking of a rope which supported it. Defendant

p. 928

was to furnish, the ropes, and did so, the workmen choosing from those furnished. Held, that defendant was not liable; that the injury was caused by the negligence of plaintiff’s fellow servants.

Appeal from judgment dismissing complaint after trial at circuit

Action for injuries alleged to have been caused by defendant’s negligence. Plaintiff was injured by the fall of a scaffold while engaged in painting one of defendant’s vessels, caused by the breaking of a rope. He was not in defendant’s employ, but was working for a firm of painters who had contracted to paint the vessel; defendant agreeing to furnish the ropes to support the scaffold. Some ropes were brought on deck which were not fit for "that use, and defendant’s rigger told plaintiff and his companions to use what ropes they could find. They then took the rope in question, which broke under their weight and caused the injuries complained of.

G. F. Langbein, for app’lt; L. Godkin, for resp’t.

This action was before the court on a previous ■occasion, a judgment having been rendered for the plaintiff. Upon that appeal, the judgment was reversed and a new trial -ordered. 21 N. Y. State Rep., 761. Upon the new trial the same evidence was introduced before the jury as had been introduced upon the first trial, and in pursuance to the decision upon "the previous appeal the judge presiding dismissed the complaint ; and from the judgment thereupon entered this appeal is taken.

Upon an examination of the record now presented we see no Teason to change the views expressed upon the previous appeal, which seem, moreover, to be sustained by the case of Butler v. Townsend, 126 N. Y., 105 ; 36 N. Y. State Rep., 508.

For the reasons stated in the opinion upon the previous appeal, the judgment should be affirmed, with costs.

Van Brunt, P. J., and Daniels, J., concur.