p. 324Thomas Thompson, App’lt, v. George E. Libbey et al., Resp’ts.(City Court of Brooklyn, General Term,Headnote
Master and servant—Negligence—Fellow servants.Plaintiff was employed by defendants in building a grain elevator, and was engaged with other employees in constructing bins. The scaffolds on which they worked were supported by planks resting on cleats on the inside of the bin, and were built by the carpenters who were working there. Plaintiff was injured by the fall of the scaffold on which he was at work. It appeared that defendants had furnished an abundance of proper materials for the work, and the fall of the scaffold was caused either by the giving away of a cleat because enough spikes were not used, or by the failure of the carpenter to cut the planks of a proper length. Held, that in either event the fault was that of a fellow servant of plaintiff engaged in the same sort of work, and that defendants were not liable.
Appeal from judgment entered upon order dismissing the complaint.
Action for personal injuries alleged to have been caused by defendants’ negligence.
G. F. Elliott, for app’lt; Jackson & Burr, for resp’ts.
Defendants, as contractors, were building a grain elevator. They employed about fifty carpenters, including this plaintiff, who were, at the time of the accident upon which this suit is based, and had been for some seven weeks prior thereto,. engaged in constructing sixty large bins about twelve feet square and -fifty feet high, and forty-eight smaller bins about six feet square and fifty feet high. These bins were constructed by a system of interlocking or dovetailing, after the manner of a log cabin, with planks two by eight inches which were placed on the broad side and spiked together, making the side walls thereof, eight inches thick, and all the bins were being carried up together. The carpenters• worked on the inside of the bins, and every five feet they rose in their construction it was necessary to make a platform on the inside to enable the carpenters to reach then-work, and this was done by the carpenters engaged in the building of the bins spiking on the inside thereof cleats on opposite - sides, and then placing on these cleats two by eight inch planks of the proper lengths, upon which the workmen stood. The plaintiff testified: “ It was the duty of the carpenters * * * to build this scaffold just as much as it was to build the side work of the bin.” The testimony shows that there was abundance of proper materials, including spikes, cleats and planks, for the construction of those platforms, and it also established that the platform which gave way was built by one of plaintiff’s fellow- em
p. 325ployees engaged in the same kind of work which he himself had been engaged in for seven weeks, viz.: the building up of the walls of these bins and the constructing of such platforms as became necessary in the progress of the work. While the plaintiff was working on this platform, it fell and he wa& hurt. There is some doubt whether the cleats gave way because the carpenter had not used enough spikes, or whether the planks were cut too short by the carpenter to reach over and rest upon the cleats. Whichever it was, the fault therefor was that of a fellow servant of plaintiff engaged in the same kind of work, there being plenty of good spikes and proper planks. It is well settled that one employee cannot recover from the common employer for the negligence of another employee in the performance of the work incident to the common employment.
Hogan v.
Field, 44 Hun, 72 ; 7 St. Rep., 444 ;
McCormack v. Crawford, 4 St. Rep., 835 ;
Judson v.
Village of Olean, 26 id., 706; 116 N. Y., 655 ;
Butler v.
Townsend, 126 id., 105; 36 St. Rep., 508 ;
Nugent v.
Atlas Steamship Co., 40 id., 927.
For these reason?, we think the judgment of dismissal of the complaint must be affirmed, with costs.
Osborne, J., concurs.