Hyperlawhypertext legal database Moy v. Ocean Steamship Co. of Savannah 65 N.Y. St. Rep. 783

← Cases

Moy v. Ocean Steamship Co. of Savannah

65 N.Y. St. Rep. 783 Court N.Y. Super. Ct. Decision date 1895-05-06 English

Delivered by McAdam, J.

Contents

Majority

p. 783
Catharine Moy, as Administratrix, etc., App’lt, v. The Ocean Steamship Company of Savannah, Resp't.
(New York Superior Court, General Term,
Filed May 6, 1895.)

Headnote

1. Master and servant—Fellow.
Where the appliance is in charge of a fellow-workman of the decedent, and there is no proof of any imperfection therein, or of anjdhing inherently dangerous in the mode of doing the work, the negligence, if any, is that of & fellow servant, for whose, conduct the ma-ster is not liable.
2. Same—Safe place.
A safe place in which to work means a place in which the permanent, constructions have been made with reasonable safety.
p. 784
Appeal by plaintiff from judgment entered on dismissal of the complaint at trial term.
L. Ruser, for app’lt; Hoadley, Lauterbach & Johnson, for resp’t; H. L. Scheuerman, of counsel.

The action is under the statute to recover damages for the death of one Patrick Moy, an employe of the defendant.

It appears that the decedent was on August 13,1894, at work in one of the lower holds of the steamship City of Augusta, and that a barrel which was being lowered into the hold of the vessel fell from the sling in which it was held and struck him while he, for some unexplained reason, was crossing directly under the open hatchway. (

The hatchway had been opened to unload the vessel, and the orders were to stand clear of the hatches until the hooks were sent down, when the barrels were taken charge of by the -workmen. There was no evidence of any imperfection in the sling, or anything inherently dangerous in the mode of doing the work. The sling was in charge'of a fellow-workman of the decedent, and if there was any negligence it was that of the fellow-servant, for whose conduct the defendant is not liable.

There can be no claim that Moy did not have a reasonably safe place in which to work; for that means a place in which the permanent constructions have been made with reasonable safety. Brick v. Rochester, etc., R. R. Co., 98 N. Y. 211 ; Harley v. B. C. M. Co., 142 id. 31; 58 St. Rep. 437 ; Mickee v. Wood, 77 Hun, 558 ; 60 St. Rep. 282 .

The decedent went over the cargo in the dangerous open hatchwajr, and it nowhere appears that he was’ in a place necessitated by his work. Under the edge of the covering, where it would seem he properly belonged, he would have been perfectly safe.

Under the circumstances there was no proof to fasten negligence upon the defendant, nor to exculpate the decedent from the inference of contributory negligence.

The judgment appealed from must be affirmed, with costs.

Sedgwick, O. J. and Freedman, J., concur.

Cases cited