
    Tonneson v. Ross et al.
    
    
      (Supreme Court, General Term,, Second Department.
    
    December 10,1890.)
    Master and Servant — Liability for Negligence — Knowledge of Employe’s Incompetency—Assumption of Risk.
    Plaintiff, while in the employ of defendants, working on a scow which received' mud from a dredging-machine, was injured by the careless management of the machine by defendants’ employe who controlled it. There was evidence that the negligence of such employe was caused by his intoxication; that he had been intoxicated two or three times a week for nearly two years before the accident, during-which time he had been employed by defendants, although their superintendent was frequently -at the dredge during that time; and that plaintiff had seen him drunk on three occasions during the eight days of plaintiff’s employment, but he did not report the facts to defendants, or leave the employment on that account. Held, that it was a question for the jury whether plaintiff, as well as defendants, was chargeable with negligence, and a dismissal of the complaint was error. Pratt,. J., dissents.
    Appeal from circuit court, Kings cpunty.
    Action by Ammund Tonneson against P. Sandford Boss and Joseph B. Sand-ford, for injuries to the person of plaintiff while in the employ of defendants. From a judgment for defendants, entered on a dismissal of the complaint at. the trial, plaintiff appeals.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      J. Edward Swanstrom, for appellant. Robert D. Benedict, for respondent.
   Barnard, P. J.

The defendants were contractors engaged in dredging the bottom of the Hudson river near Weehawken. The superintendent was one-Vincent, and the captain in charge of the dredging machine was one Delamater. The plaintiff was an employe of the defendants, working on the scow which received the mud from the dredging-machine. The dredging was done-by steam, and the buckets were handed from the mud-machine or dredger.. The plaintiff had been at work but a few days for the defendants, the 21st to-the 29th of September, 1888. On the 29th of September, 1888, while the defendant was at work on the scow, the captain, Delamater, who controlled the-same from the pilot-house of the dredge, swung the bucket over and struck the shaft which the plaintiff was turning with a wrench. The wrench was-made thereby to spring up, so that it struck the plaintiff and seriously injured’ him, paralyzing his arm and breaking his jaw. The evidence tended to establish that the captain was drunk at the time. The plaintiff had seen him drunk on three occasions during the employment of eight days. The captain always run the machine. The plaintiff did not tell the defendants of the fact that he was addicted to drink, and did not leave the employment on that account. It is easily to be inferred from the evidence that but for the recklessness caused by strong drink the accident would not have happened. The captain had full view of the situation, and could regulate the bucket with certainty and precision if his judgment was not affected by his condition. Proof was given tending tb show that the captain was in an intoxicated condition as often as two or three times a week, and this was his usual condition for nearly two years before the accident, during all the time he worked for the defendants. The defendants’ superintendent, Vincent, was at Weehawken every other day, and was there the day on which the accident happened. Ho direct proof was given that the defendants knew of the habits of Delamater. The plaintiff was nonsuited. The rule of liability in the case is that the master was bound to use reasonable care, to provide and employ competent and skillful servants, and to discharge, on notice or knowledge, or the means of knowledge, any who fail to continue such. Lanning v. Railroad Co., 49 N. Y. 621. The case of Chapman v. Railroad, 55 N. Y. 579, does not change this rule. The point decided in that case was that a master did not owe the same care in finding out bad habits after employment as they did in the original employment. There was proof in the case that the defendants’ division superinl.endent knew of the drunkenness of the employe, and the court held that the action was made out so far as to go to the jury. The superintendent was so frequently at the dredge during its use by Delamater, and the habits were proven to be so settled and continuous, that it was a question for the jury to pass upon as to his knowledge or means of knowledge. . Negligence is a question of fact usually, and whether the plaintiff was guilty of omissions which precluded his recovery, assuming the master’s negligence to be proven, was also a question for the jury. The character of the act, the circumstances of the case, and the condition of the parties, were things to be considered in determining the question of contributory negligence. Thurber v. Railroad Co., 60 N. Y. 331. The judgment should therefore be reversed, and a new trial granted, costs to abide event.

Dykman, J., concurs. Pratt, J., dissents.  