McDonough v. Walsh — 49 N.Y. St. Rep. 361

Majority

p. 361

John McDonough, Pl’ff, v. Peter H. Walsh, Def't.

(Supreme Court, General Term, Second Department,

Filed December 12, 1892.)

Headnote

Master and servant—Negligence.

While plaintiff was engaged in discharging the cargo of a boat by loading iron in buckets which were raised by steam, one of them was overturned and plaintiff was struck by the iron and injured. There was no proof of defects in the appliances used; the only cause of the accident being that the bucket was not raised sufficiently to clear the top of the hatchway. Held, that as the appliance was safe when properly used, the master was not liable and plaintiff was properly nonsuited.

Exceptions ordered heard at first instance at general term, after a nonsuit.

Action for injuries alleged to have been caused by the negligence of defendant.

Chas. J. Patterson, for pl’ff; Hobbs & Gifford, for def’t.

There is no proof of neglect upon the part' of the master. The plaintiff was an employee whose place was in the hold of a steamship. His duty was to fill the buckets with short bars of iron. The loaded bucket was raised by steam. When the bucket reached the top of the combings of the top hatch, it was, by another employee, pulled sideways and dumped| on the dock. There is an entire absence of proof tending to show any defect in the appliance which was used. The bucket was strong and the rope sufficient. The only cause of the accident was that the bucket was not raised sufficiently to clear the top of the hatchway and thereby' the bucket was overturned. The method of unloading vessels was a common one. “It was an ordinary and customary way to unload heavy freight,” as was stated by the plaintiff upon the trial. The mode of using the hoistway apparatus was changed a little while before the accident. The bucket had, for some reason, dumped its load. It was a common occurrence for the bucket to turn out its load if it hit anything. The cause of the accident in question is not very clear to me from the evidence. The appliance was safe when it was properly used. The plaintiff was, therefore, properly nonsuited. Cregan v. Marston, 126 N. Y, 568 ; 38 St. Rep., 428 .

Exceptions overruled and judgment for defendant on the non-suit, with costs.

Dykman and Pratt, JJ., concur.