McCampbell v. Cunard Steamship Co. — 53 N.Y. St. Rep. 330

Majority

p. 330

Daniel McCampbell, Pl’ff., v. The Cunard Steamship Co., Def’t.

(Supreme Court, General Term, Second Department,

Filed May 8, 1893.)

Headnote

Master and servant—Negligence—Insufficient appliances.

Plaintiff, a longshoreman, was emnloyed to remove drums of soda hy means of a four wheel, flat top truck down an inclined skid from one of defendant’s vessels. While so doing one of the drums slipped, and plaintiff, to prevent its falling upon him, ran down the incline and had reached the dock, when the wheels of-the truck caught in an opening between the skid and the mouthpiece; he was thrown down and the drums fell upon him. The mouthpiece, if properly fastened to the skid, should have followed its motion and left no opening. Held, that this was the fault of the superior or his alter eyo, and not a danger which the plaintiff assumed.

(Barnard, P. J., dissents.)

Exceptions ordered heard at general term in the first instance after dismissal of complaint.

Action to recover for injuries alleged to have been caused by defendant’s negligence. Plaintiff was a longshoreman, and was employed to remove drums of soda from one of defendant’s vessels. For this purpose he was furnished with a four wheel, flat top truck, upon which to bring the drums down an inclined skid from the deck of the vessel. No appliance to hold the drums on the truck was supplied except pieces of refuse wood. The slcid was smooth and had mouth-pieces at each end, which if properly fastened followed its motions. The ship was rigged for unloading by the sailors, and the longshoremen had nothing to do with it. As plaintiff was drawing a load down he discovered that the batten was slipping and the drums about to roll upon him, whereupon he started to run to the dock, and had about reached it when the wheels of the truck caught in an opening between the skid and. the mouthpiece, which was not fastened, and plaintiff

p. 331

was thrown down and the drums rolled upon his legs, injuring them.

George William Hart, for pl’ff; Frank D. Sturges, for deft.

It is clear that the truck was not a proper vehicle on which to move the drums down an inclined plane. And it is certain that the skid was placed at a dangerously steep angle.

Whether the plaintiff could recover on these grounds may be' doubtful, as it might be said that the danger was obvious and he took the risk. To a certain extent a laborer may rely on the presumed superior knowledge of his employer, and perhaps it was a fair question for the jury whether he might do so in this instance. We need not pass upon these questions, as we think another point is presented which requires a reversal.

Both witnesses testify that had the “ mouthpiece ” been properly attached to the skid so as to follow its motion the plaintiff could have escaped. The gap of some inches left between them is not shown to have existed when the plaintiff went to the work. That would vary from moment to moment as the vessel rolled. That was a danger we cannot say plaintiff accepted.

No such gap should have been permitted, and that it existed was the fault of the superior or his alter ego.

The stevedores did not rig the vessel for the work, and the Superintendent was not a fellow servant with the plaintiff.

Judgment reversed, new trial ordered, costs to abide the event

Bykman, J., concurs; Barnard, P. J., dissents.