
    Ammond Tonneson, App’lt, v. P. Sanford Ross et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    
    1. Master and servant—Negligence.
    A master is 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.
    3. Same.
    Plaintiff, while in the employ of defendants, was injured by the negligent act of their captain, who controlled the machinery and who was drunk at the time. It appeared that this was his customary condition, which was known to plaintiff, who said nothing about it to defendants, and it was not shown that they knew of the captain's habits, although their superintendent was frequently at the place were they were at work. Held, that the questions of defendants’ knowledge and whether plaintiff was-guilty of omissions which precluded á recovery should have been submitted to the jury.
    (Pratt, J., dissents.)
    Appeal from judgment dismissing the complaint.
    
      J. Edward Swanstrom, for app’lt; Robert D. Benedict, for resp’ts.
   Barnard, P. J.

The defendants were contractors engaged in dredging the bottom of the Hudson river, near Weehawken. The-superintendent was one Yincent, and the captain in charge of the dredging machine was one Delamater. The plaintiff was an employe of the defendants, working on a 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 to 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, Yincent, was at Weehawken every other day, and was there the day on which the accident happened. No 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 faü to continue such. Laning v. N. Y. C. R. R. Co., 49 N. Y, 521.

The case of Chapman v. E. R. R., 55 N. Y, 579, aoes 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 defendant’s division superintendent 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. Harlem B. M. & F. R. R. 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.  