Kilroy v. President, &c., of the Delaware & Hudson Canal Co.

Majority

p. 138

LAWRENCE KILROY, Respondent v. THE PRESIDENT, &c., OF THE DELAWARE & HUDSON CANAL CO., Appellants.

Headnote

Negligence—evidence of custom.

In an action brought by plaintiff who was employed by a stevedore engaged in unloading coal from one of defendants’ boats, for injuries alleged to have been sustained by plaintiff through the negligence of defendants, in the management of the derrick used in unloading said cargo of coal.

Held, though it appeared that the stevedore was employed by defendants as such stevedore, to unload said coal, and the derrick and its appurtenances used for that purpose, belonged to said stevedore, yet it was competent for plaintiff to show that the unloading was to proceed according to a certain custom, and that it was part of the custom for the captain of the boat, or some one specially designated by him for that purpose, in the interest of the boat to attend to the guy rope and to direct the movements of the boy who managed the hoist horse.

Before Sedgwick, Ch. J., and Freedman, J.

Decided June 20, 1888.

Appeal by defendants from judgment entered upon the verdict of a jury, and from order denying defendants’ motion for a new trial.

Action to recover damages for personal injuries alleged to have been sustained by plaintiff through the negligence of defendants in unloading a cargo of coal from one of its canal boats.

At the time of the accident plaintiff wras in the employ of a stevedore, named O’Brien, and was engaged in unloading coa.1 from a canal-boat belonging to defendants. In the process of unloading, the derrick used fell, and some portion of the tackle struck plaintiff on the head, causing a fracture of the skull. The derrick and

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all the things connected with it was the property of the stevedore, O’Brien.

Matthew Hale and Frank E. Smith, for appellants.

Louis F. Post and Samuel Ashton, for respondent.

Although James O’Brien was employed as a stevedore to unload the coal from defendants’ boat, and the derrick with its appurtenances used for that purpose was the property of such stevedore, yet it was competent to show that the unloading was to proceed according to a certain custom, and that it was part of the custom for the captain of the boat, or somebody specially designated by him for that purpose, in the interest of the boat to attend to the guy rope and to direct the movements of the boy who managed the hoist horse.

In the case at bar evidence was given that pursuant to such custom the captain of defendants’ boat did undertake to attend to the guy rope and to direct the movements of the boy and the horse first in person and afterwards by a substitute, and that plaintiff’s injuries were caused by the manner in which said substitute performed the assumed duty.

The evidence was submitted to the jury with an instruction to the effect that if, in what he did, the captain acted as the servant of O’Brien, the plaintiff could not recover, but if he acted as the servant of defendants’ company, the company was chargeable with his negligence and the negligence of the person whom he substituted in his place. The jury were also instructed that the plaintiff could not recover unless the injuries which he sustained, were the natural and proximate result of negligence chargeable to the defendants. There was no error in such submission. Indeed the charge, as a whole, fully and fairly guarded every right of the defendants in every aspect of the case.

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Upon the whole case no exception appears which constitutes ground for reversal.

The judgment and order should be affirmed with costs.

I am of opinion that the employment of the stevedore and his derrick, was not inconsistent with the captain of the boat being the servant and agent of the defendants in the management of the guy rope. The captain, as a witness for defendants testified, “ It is part of my duty as captain of the boat to handle the guy rope.”

Under the circumstances of the case the jury could rightly find, that the authority of the captain was not confined merely to holding the guy, but was more general in respect of its entire management so that he had authority to give its care and handling to a third person who thereupon became an agent of the defendants, and whose negligence if that occurred was imputed to the defendants.

I think that no exception was taken which calls for a reversal of the judgment and that it and the order appealed from, should be affirmed with costs.