Geoghegan v. Atlas Steamship Co.

The moving papers fail to show that any question presented by counsel and decisive of the case, has been overlooked by the court. Bule 16. The complaint rather is that points are presented by the court which were overlooked by counsel.

It is true that, through no neglect gr inadvertance of counsel, however, attention was not directed to Gabrielson v. Waydell, and Barrett v. Palmer in the 135th volume of the court of appeals reports ; but the adjudication in neither of those cases is inconsistent with our decision. Barrett v. Palmer, 47 St. Rep., 876 , is altogether beside the question in controversy; and the doctrine of Gabrielson v. Waydell, 47 St. Rep., 848 only affords additional support to our conclusion. The doctrine is : “ That the master and seamen of a. vessel are fellow-servants ”; and that the principal “ has performed his duty when he has furnished to those who are employed by him a reasonably safe place, appliances adequate to the purposes of the employment, and when he has appointed as fellow-servants in the undertaking proper persons, competent for the position. After that, from what may happen from the risks of the employment, or from the negligence or torts of fellow-servants, he will not be responsible.

In Hogan v. Smith, 125 N. Y., 774 ; 35 St. Rep., 890 , the court said: “ But the place which the master furnished was the ship itself, constructed in the usual way, and which became unsafe, not by reason of any careless or negligent plan or manner of construction, but solely from the way in which the long-shoremen did their work.’’ So here, the accident occurred from the neglect of the fellow-servants to close or guard the door through which the intestate fell.

In- no view of the ease is it possible to uphold the judgment. Upon reconsideration we áre all the more content with the decision.

Motion denied, with costs.