Coyle v. Pierrepont , 44 N.Y. Sup. Ct. 379 ( 1885 )

BarNArd, P. J.:

The question in this case is whether the plaintiff was injured by the negligence of the defendants’ servant. The defendants own docks in Brooklyn. One Michael Gillen, a stevedore, was employed by the owners of a vessel to unload her at these docks. The cargo consisted of castor oil packed in wooden boxes weighing each box about two hundred pounds. The defendants hired to Gillen a portable engine and boiler, with the engineer to run the same, to furnish the power to hoist from the vessel and lower upon the dock the cargo. The plaintiff was an employee of the stevedore. The engineer had the' exclusive charge of the. engine. Four boxes were packed in a sling. The engineer lowered one of the packages too fast and stopped it too quickly. The package was thereby broken apart and the plaintiff was injured. The court charged the jury that the defendants were responsible for the negligence of the engineer.; that in respect thereto the defendants were the masters of the engineer. This was the correct rule. "Whatever question could be made upon the authority of the case of Burke v. De Castro, etc., Sugar Refining Company (11 Hun, 354), is answered by the case of Gerlach v. Edelmeyer.^* The case was tried in the Superior Court of New York. The defendants in the case had contracted with two builders to furnish a boiler and engine with engineer to raise the material for building. The rope broke and killed the plaintiff’s intestate. The judge charged the jury that the defendants wore liable as the masters of the engineer for his negligence. The Court of Appeals affirmed the judgment. • This affirmance was subsequent to the decision in the case of Burke v. Be Castro, etc., Sugar Refining Company, and although the Court of Appeals gave no opinion upon the affirmance, the opinion of the General Term of the Supreme Court distinctly upheld the charge to the jury. The Court of Appeals must have intended to sustain this opinion. If the defendants were responsible for the negligence of the engineer the other questions were settled by the jury. The plaintiff was properly on the dock. He was guilty of no negligence which contributed to the injury. The accident twas not caused by an improper method adopted by che stevedore to do the -frork. The plaintiff was injured to the extent of the verdict. All these things are found as well as the negligence of the engineer.

The judgment should, therefore, be affirmed, with costs.

PRAtt, J., concurred; Dykman, J., dissented.

Judgment affirmed, with costs.

* 88 N. Y., 045, and 15 J. & S., 292. —[Rep.