
    Edward Divver, Respondent, v. Benjamin J. Hall, Appellant.
    (Supreme Court, Appellate Term,
    October, 1897.)
    1. Uegligence — Failure of coservant to perform, a detail of the work.
    Where the master furnishes his employee a suitable appliance for loading a vessel, consisting of a deck skid or bridge, in'temporary use, in good order, and having ring-holes on' either side through which lanyards to hold it might be fastened, and where he also provides plenty of rope suitable for that purpose, he" is not liable to a stevedore ■injured, while necessarily passing from the dock to the vessel, by the slipping of the skid which had not been properly secured with ropes by the gangwayman, a coemployee present at the time of the accident and whose duty it was1 to secure the skid; as the fastening of such a skid is a mere detail of the Work, is performable by the employees, and the failure of a coemployee to do his duty in this respect is a . risk which the employee assumes when he accepts the employment.
    2. Appellate Term — May review a denial of a nonsuit.
    The appellate powers of the Appellate Term, in respect to appeals from the General Term of the Oity Court, are similar to those .of the-Court of Appeals, upon appeals to it; and while the Appellate Term" ■■ cannot .reverse a judgment as against the weight of evidence, it may review an exception, taken to a denial of a nonsuit, with .a view, of ascertaining whether there is sufficient evidence to support the verdict, and this because such an exception presents a question of law.
    Divver v. Hall, 20 Misc. Rep. 677, reversed.
    Appeal by defendant: from affirmance by the General Term of . the Gi'ty Court of a judgment in favor of plaintiff.
    Nadal, Smyth, Carrere & Trafford (C. C. Nadal, of counsel), for appellant.
    
      Thomas A. Stoddart (J. N. Lewis, of counsel), for respondent.
   McAdam, J.

On the afternoon of June 15, 1895, the plaintiff, a stevedore, employed by the defendant, while assisting in lading the steamship The' Cacique, at pier 37, Horth river, was injured by the slipping of the deck skid or bridge on which he was passing from the dock to the vessel in the performance of his work. The defendant’s responsibility was placed on the ground that he failed to furnish proper appliances and a safe place to work.

It was conceded that the skid furnished was a suitable appliance, twenty to twenty-five feet long and four to six feet wide, and that it was in good order and safe on the day of the accident. The feature pointed out and relied on as constituting negligence is that the skid was not at the time securely fastened to the vessel by lanyards so as to prevent it shifting or falling by the movement of the tide and swells from passing steamers, and through the omission to make such fastening the appliance was unsafe and caused the injury complained of.

The plaintiff sufficiently established by his own testimony and that of the witness Donovan that there were no lanyards attached to the skid when it fell. But this of itself did not establish a right, of action against the defendant. He was bound to go further and overcome the legal presumption that the defendant had performed the duty- of furnishing rope to fasten the skid by proving as matter of fact that the defendant had neglected this all-important duty; because if the defendant furnished ample rope to fasten the skid the menial act of adjusting and fastening the ropes was a mere detail of the work, which according to the evidence and usage devolved upon the gangwayman, a fellow servant of" the plaintiff. Donovan testified that there were ring-holes on each side of the skid for the lanyards, so that all the master had to furnish for perfect security was rope to go into the ring-holes and hold the skid in place.

It would certainly not be contended that a master who furnishes á suitable derrick with plenty of rope would be liable to a workman injured by its fall, simply because he does not adjust the ropes to the derrick before it is sent to the job or put in operation; and yet there is no substantial difference between the case put and the one at bar as proved: Affirmative proof establishing the defendant’s failure to furnish rope for the fastening of the skid vras an indispensable link in the plaintiff’s chain of proof.

¡Negligence, consisting as it always must of some wrongful act or omission, where it is an essential element in a cause of action, can never in the ahsénce of proof be presumed. The presumption is that all men do’their duty (Laws. Pres. Ev., 61; Wood’s Ev., 229; Best’s Ev., 5th Lond. ed., 402; Continental Nat. Bk. v. Strauss, 60 N. Y. Supr. Ct. at p. 157; aff’d, 137 N. Y. 148), the maxim being omnia praesumuntur■ rite esse acta, and the plaintiff was bound to overcome the presumption before the. defendant could-be charged as a wrongdoer.

In Baulec v. N. Y. & H. R. R. Co., 59 N. Y. at p. 366, the court laid down the rule that a judge is not justified in leaving a case to the jury when the plaintiff’s evidence is equally consistent with the absence and the existence of negligence on the part of. the defendant, and that under such circumstances the party affirming negligence has altogether failed to establish it. See, also, George v. Grant, 97 N. Y. at p. 262.

In an action by an employee against his employer for injuries sustained by the former in the course of his employment, from defective appliances, the presumption is that the appliances were not defective.- * y * In like actions for injuries sustained by reason of incompetent fellow servants, the presumption is that the fellow servant was not incompetent, and that the'master was "not negligent in employing him or retaining him in his. employment. -

. “ Therefore, in such'actions, the onm probandi is upon the plaintiff to negative those presumptions, in order to make out a prima facie case. To establish negligence in cases of this character, the plaintiff must prove either that the master had undertaken personally to superintend the work, or that the persons employed by him, were not proper, and competent persons, or that-the materials were inadequate* or the means and resources, unsuitable to accomplish the Work. The onus is upon him; and failing to "do so, he fails to establish negligence.” Thomp.. Heg. 1.053.

The vital part of a case should not be left to mere conjecture or suspicion, for where .there is no evidence before a 'jury, or the weight of the evidence is" so decidedly preponderating in favor of one side that a verdict contrary to it would be set aside, it is the . duty of the trial- justice to nonsuit or to direct the verdict, as the case.requires". Linkhauf v. Lombard, 137 N. Y. at p. 426.

The defendant and his witnesses testified that ample rope was furnished', though the onus of establishing failure to furnish it was on the plaintiff; and the question resolves itself into whether the plaintiff supplied such proof.

Both the plaintiff and his witness Donovan testified that there was always plenty of rope lying around the dock or deck to fasten things, although the plaintiff added that “because he went down so fast ” he did not have time to see anything on the occasion in question. Donovan was particularly interrogated on the subject, as appears by the following questions and answers:

“Q. There was plenty of rope lying around the vessel; there always are? A. I suppose so; on the docks; they are supposed to be on the dock.

“ Q. There were ropes there that the skid could have been made fast with? A. I guess so; certainly they could.”

That there was" an entire absence of rope with which the skid could have been tied, an indispensable part of the plaintiffs case¿ was not established by him. On the other hand the defendant, as before stated, proved by several witnesses the presence of ample rope; and independently of this he was supported by the legal presumption that he had fully performed his duty in that regard. How can it be urged, therefore, that there was evidence on the part of the plaintiff sufficient .to require the submission of that question to the jury or to sustain a finding thereon in his favor?

The defendant pointed out the defect in the plaintiff’s proofs by motion to dismiss the complaint when the plaintiff rested, and again on the conclusion of the case, stating as the grounds “ that ropes were supplied which could be "used to secure the skid to the vessel; that the man who was the gangwayman was also supplied, and he was there at the place, at the skid, on the vessel, whose duty it was to make the skid fast; ánd that according to plaintiff’s own case the accident happened through the failure of the gangwayman to secure the skid, and that, therefore, the accident was due to the negligence of a fellow workman.” This motion afforded .the plaintiff an opportunity of strengthening his case, if he could, on the question of absence of rope; but he did not, and perhaps, could not, do so. Lewis v. Ryder, 11 Abb. Pr. 1.

The appellate powers of this court in respect to appeals from the General Term of the City Court are similar to those of the Court of Appeals in appeals to that court, and the same rules must obtain. Rowe v. Comley, 11 Daly, 317. While we cannot disturb a judgment as against the weight of evidence, we may where a motion for a nonsuit has been made and denied review an exception taken to.the denial of the motion to ascertain whether there is sufficient evidence to sustain .the verdict, because that presents a question of law for our determination. Szuchy v. Hillsdale C. & I. Co., 150 N. Y. 225, 227; Healy v. Clark, 120 id. 642; Yale v. Curtis, 151 id. at p. 607.

Assuming, therefore, that there were no lanyards attached to the skid, but plenty of rope with which it might have been securely fastened to the vessel, it is clear from the evidence that it was the business of the gangwayman to see that this duty was performed. The defendant never undertook and was not obliged to personally ' superintend this detail of work. The neglect to perform- it must, 'therefore, be attributed to a' fellow workman of the plaintiff in charge of that detail, and' that was' one of the risks which the plaintiff assumed when he accepted employment on the job. '

The'rule that a master must furnish suitable tools and appliances and a safe place to work is qualified by another — that where the master furnishes suitable appliances, and the duty to adjust them properly to work of a temporary character is neglected by a workman whose business it is. to attend to that detail, the master is not liable to a fellow workman injured by the neglect. Conway v. R. R. Co., 13 Misc. Rep. 53; Cregan v. Marston, 126 N. Y. 568; McCampbell v. Cunard S. S. Co., 144 id. 552; Hogan v. Smith, 125 id. 774.

These principles are illustrated by the cases.

In Kennedy v. Jackson Iron Works, 12 Misc. Rep. 336, a workman had been injured by the improper setting of a derrick used for hoisting, and the court (at p. 341) said: “If the derrick Was carelessly or improperly set up under the directions of the foreman, his negligence in that regard was then the negligence of a fellow servant, not performing, in .that respect, a duty primarily resting upon the defendant. There was some evidence tending to show that the fall of the derrick was the result of a failure to secure one of the stay ropes at a point sufficiently distant from the báse of the derrick • to give the latter proper stability. • There is no other evidence in the case upon which the accident may be attributed to' any. other cause. This, however, was due to the carelessness or erroneous judgment of the foreman in setting it up, and as in that regard he was acting simply as a fellow servant of the- plaintiff, and was not performing a duty which the defendant himself owed to the latter, the plaintiff cannot recover.”

The Court of Appeals has said (Webber v. Piper, 109 N. Y. at p. 499): “ There are many matters of detail in the management of safe and adequate machinery, which must be intrusted to the operatives, and as to which the master owes no duty except the employment of competent workmen, and we deem this a case of that character. The line of division between the duty of the master to furnish and maintain safe and adequate machinery,- and that of the operative to manage and handle it with prudence and care, is difficult to define by any general description, but is quite obvious when each case, as it arises, comes under consideration.”

In Hudson v. Ocean S. S. Co., 110 N. Y. 625; 16 N. Y. St. Repr. 416, the plaintiff, who was helping to load a vessel, was precipitated into the water by the falling of the skid over which he was carrying freight. According to the evidence it was the duty of one of the longshoremen to make fast the skid to the ship by means of rope, and the accident occurred because the skid was not properly secured. The court in sustaining a dismissal of the complaint said: u The proofs showed the ‘ skid. ’ to be in good order, and the slipping of the shore end was caused by some omission of those engaged at work to attend to its fastenings; or the fall may have been caused by the swell of some moving vessel. Ho fault or neglect was shown on defendant’s part. The principle upon which actions are allowed against a master by his servant is the obligation resting upon the former to provide adequate and safe appliances, and such as are usual in the particular business in which the servant is employed. This is a duty implied from their contract, and failure of the master in that duty renders him responsible to his servant for injuries occurring. ' But if the master has performed his duty in that respect, the servant takes all the risks involved in the work in which he is engaged and of his own and his fellow servant’s negligence.”

The plaintiff in Cregan v. Marston (supra), was injured by the breaking of a rope of a tackle used in loading a vessel. . It was proved that there was plenty of rope supplied, and the men could have replaced the old rope with new rope if they had seen fit. The court held that the master had discharged his whole duty, and said: The cases cited and their doctrine appear to be founded upon what is determined to be the implied contract relation be- ’ tween the master and servant. Their mutual duties grow out of that relation and change and vary as it is changed or varied by the facts which indicate and measure it. Where those facts show that in the understanding of both parties a class, of ordinary repairs are to. be made by the servants with materials furnished by the master for that express purpose; that they and he regard it as a detail of theñ own work; that it is something entirely within their capacity and not dependent upon the skill of a special expert; and that the necessity springs from their daily use- of the 'appliance, occurs at different and unknown periods in their service, and is open to their observation in the absence of the master, the inference is inevitable that the contract' relation between the parties makes it a duty of the servants, and a detail of their work to correct the defect when it arises with the materials furnished.”

. The plaintiff testified that there were three holds in the vessel for the stowage of freight — Ho. 1, forward; Ho. 3, in the centre; and Ho. 2, aft; that he had finished work on the other holds, and went forward to Ho. 1 to assist in lading resin, the boards he was carrying at the time of the accident being for dunnage for the resin; and in order to do the work he had to use Ho. 1 skid. It may be implied from the testimony that there was more than one skid, or if only one that it had to be shifted to suit the occasion. In either event its use at any given place was but temporary, and until the particular detail of work thereat was completed.

In McCampbell v. Cunard S. S. Co. (supra), the plaintiff was engaged to unload a vessel by trucking freight over a skid. A portion of the skid over a “ mouthpiece ” at the lower end was. not properly secured to the end of the mouthpiece, and the plaintiff was injured in consequence. The court said: “ The most that can be claimed by the plaintiff is that the mouthpiece was improperly tied to. the skid. • There is no other complaint made with reference to the skid, the mouthpiece or the appliance furnished for fastening ' them together.. They were of the kind and character in common use. They were open, visible appliances, of simple construction, the use of which was well known and understood by the plaintiff; They were tied together by the employees of the defendant, who were shown to be experienced longshoremen; and if, as claimed, this work was improperly done, it was the negligent act of the co-employees of the plaintiff.”

In Jenkinson v. Carlin, 10 Misc. Rep. 22, it appeared that the plaintiff, a bricklayer in the employ of the defendants, was directed by the foreinan over the mason work to go to work on a pier which was near a derrick, arid was shortly afterwards injured by the fall of the derrick, caused by the absence of a check-rope, which a fellow servant who had charge of the derrick forgot to attach tti 'it. The court held that the 'defendants were not responsible.

In Marvin v. Muller, 25 Hun, 163, an employer furnished to his workmen, who were all competent and fit persons for the work, a derrick in all respects complete and in good condition. The derrick had from time to time during the progress of the work to be moved» Owing to one of the workmen having insecurely fastened a guy-rope attached to and forming part of the derrick, the derrick fell and killed the plaintiff’s intestate, one of the workmen engaged in doing the work. In an action brought by the legal representatives of the deceased it was held that the employer was not responsible in damages.

In Holden v. Fitchburg R. R. Co., 129 Mass. 268, the court (at p. 278) laid down the rule as follows: “ It being admitted that the derrick was suitable for the work for which it was designed, and there being no evidence of negligence on the part of the corporation in selecting or instructing the workmen, any negligence of theirs in setting up or using the derrick is the negligence of fellow servants of the plaintiff, for which the defendants cannot be held liable.”

In an action to recover damages resulting from injuries caused by the alleged negligence of the defendant it appeared that the plaintiff, an employee of the defendant, was directed to assist in hoisting a large tank into the pumphouse of the defendant through a window or archway, before which a scaffold having loose boards upon it had been erected for another purpose. The tank was improperly attached to the hoisting ropes, and when it was hoisted it turned over and struck against the scaffold, knocking down the loose planks, one of which struck and injured the plaintiff. It appeared that if the tank had been properly secured to the ropes, or if the boards upon the scaffold had been removed from or had been fastened to it, no injury would have resulted. The court held that the defendant had furnished the plaintiff a safe place to work and safe tools, and was not responsible for their negligent use by the foreman who superintended the work; and further that the negligence was that of a fellow servant, and, therefore, one of the risks of the plaintiff’s employment. Bagley v. Consol. Gas Co., 5 App. Div. 432.

The plaintiff failed to prove any omission of duty on the part of the defendant, and under the cases cited the motion for a nonsuit should have been granted. The exception to the refusal to dis- ' miss presents error, for which the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Daly, P. J., and Bischoff, J., concur.

Judgment reversed and new trial ordered, with, costs to appellant to abide event. ' '  