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Jenkinson v. Carlin

62 N.Y. St. Rep. 643 Court Brooklyn City Ct. Decision date 1894-10-22 English

Delivered by Clement, Ch. J.

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p. 643
Joseph Jenkinson, App’lt, v. Patrick J. Carlin et al., Resp’ts.
(Brooklyn City Court, General Term,
Filed October 22, 1894.)

Headnote

Master and servant—Fellow. ,
A master is not liable for injuries tó a servant, occasioned by tbe -failure of another servant to provide proper appliances.
Appeal from a judgment of nonsuit.
Shorter é Kurth, for app’lt; Wm. S. Cogswell, for resp’ts.

The plaintiff, a bricklayer by trade, was on the 18th day of Ma tch, 1893, in the ^Lploy &k the defendants, who were erecting a building at the cj/ner of Rockv^fiJ] place and Dekalb avenue, in tluis city ' ire’’arrived at that place'NJ’bij'ht o’clock in the morning, ahd was directed by one McCabe, who was a foreman for the defendants, to work on a certain wall.

p. 644
After working there for about two hours, he was ordered by Mc-Cabe to work on a pier near a derrick on which there was no check rope. After working an hour on the pier, the derrick fell, and he was severely injured. The derrick fell for the reason that it ha(l no check rope. The plaintiff brought this •action to recover damages from the defendants for thqir alleged negligence. The learned trial judge dismissed the complaint at the close of plaintiff's case, and this appeal is taken from the judgment of nonsuit.

1 We are of opinion that the defendants are not responsible for the failure of McCabe to see that the check rope was attached to the derrick. Crispin v. Babbitt, 81 N. Y. 516 ; Hussey v. Coger, 112 id. 614 ; 21 St. Rep. 848 ; Cullen v. Norton, 126 N. Y. 1 ; 36 St. Rep. 359 . McCabe was simply a foreman over the mason Work, and his declarations after the accident did not bind the defendants. It appeared that John Richardson, a fellow servant of plaintiff, had charge of the derrick. He testified that the derrick fell for the reason that it had no check rope, and that he forgot to attach a rope to it. The case, therefore, falls within the rule laid down by the court of appeals in Cregan v. Marston, 126 N. Y. 568 ; 38 St. Rep. 428 , and the dismissal of the complaint was, therefore, right. If the questions which were ruled out below had been answered favorably to the claim of the plaintiff, he would not stand in any better position. There was no testimony tending to show that McCabe was incompetent to fill the position of foreman.

Judgment affirmed, with costs.

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