Hannegan v. Union Warehouse Co. , 73 N.Y. St. Rep. 753 ( 1896 )

PRATT, J.

An objection is made to pluintiff’s recovery on the ground that defendants owed no duty to plaintiff. We do not think. that objection tenable. There was testimony tending to show that defendants and plaintiff’s employer, for their mutual advantage, combined their forces, and removed the sugar from the ship directly to the warehouse, defendants supplying a few men, with trucks and slings, and plaintiff’s employers supplying most of the laborers, plaintiff being one of them. This was mutually advantageous, as by this course the sugar had to be handled but twice, instead of four times. Under these circumstances the plaintiff cannot be regarded as a stranger to defendants. He was engaged in the work there carried on for the benefit of both defendants and plaintiff’s direct employers. Defendants’ duty to supply safe implements for use of the plaintiff did not differ in principle or degree from the duty the law imposed on them to furnish safe implements for the laborers they hired directly. As to the negligence of defendants in supplying the slings, there was abundant evidence to go to the jury. Several witnesses testified that many of the slings supplied were so old and worn as to be improper for that purpose, and, as one sling broke while in use, we see no reason to doubt the truth of the testimony. It cannot be held as matter of law that to supply slings unfit to carry the weight was not negligence. The jury has found negligence, and on sufficient testimony. Whether plaintiff proved himself free from negligence is a question of more doubt. Yet, if the jury credited his testimony, we cannot say their verdict was wrong. When plaintiff was standing under the deck he testified that he looked up, and. not being able to see the sugar overhead, he went under the hatchway in pursuance of his duties. Very likely, when he was in the center of the hatchway, he might have been able to see the sugar,, which was not within the line of vision while he occupied his first position. While he was in the center, the sugar fell, and he received the injury. How long he must wait under the deck after the ascending sugar got out of his sight was a matter of judgment. He could not wait forever. The jury have found him free from negligence, and we cannot say they are wrong. The question is peculiarly within their province. Hone of the exceptions require further discussion, and the judgment must be affirmed, with costs. All concur.