
    Agostino Esposito, Appellant, v. Rock Plaster Company of New York and New Jersey, Respondent.
    Second Department,
    December 30, 1910.
    Master and servant — negligence — injury to stevedore — negligence of fellow-servant — when relation of parties is for jury.
    Where the contract between stevedores employed to unload- a vessel and the owners of the vessel required the former to furnish all necessary appliances and labor except that the latter was to furnish the hoisting apparatus, power therefor and an engineer to operate it, it is error to nonsuit an employee - of the stevedores who was injured through the negligence of the engineer in operating the hoisting apparatus on the theory that they were fellow-servants, where it .appeal's that the engineer was in the general employ of the owners of the vessel, was hired and paid by them, and that they alone had power to discharge him.
    Under the circumstances the question as to whether the engineer had for the time being become an employee of the stevedores was a question of fact for the jury under proper instructions.
    The mere fact that an employee of the stevedores signaled the engineer when to start and stop the hoisting engine was not such supervision and control of the engineer by the stevedores as to make him.the plaintifi’s fellow-servant,
    Woodward and Rich, JJ., dissented, with opinion.
    
      Appeal by the plaintiff, Agostino Esposito, from'a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 4th day of January, '. 1910, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term. .
    ¡ Moses Beltenstein, for the appellant.
    
      WiUiam'-H. Beard, for the respondent.
   Bdbpv, J. :

Plaintiff’s right of action depends upon the common-law liability of master to servant.- He was in the employ of the firm of M. P. Smith & Sons. Their business was. that of stevedores. On the 30th of November, 1906, they were engaged in d-ischargirig a cargo' for defendant from, a steamship lying at "its dock at the foot of One Hundred and Fiftieth street in the borough of the Bronx. Part of the appliances for unloading the vessel consisted of a steam winch, derrick and fall, which belonged to defendant. While at work, plaintiff was struck by an iron bucket attached to the fall, as th e result of which he sustained serious injuries. There was' evidence from which a jury could have found that this Was due to the careless and negligent conduct of the engineer in charge of the winch.. At the close of plaintiff’s case a motion to nonsuit was granted upon the ground that the negligence of tliewinchman was that of a fellow-servant of plaintiff. The winchman was in the general employ of defendant, was hired by it, paid by it, and so far as. the evidence discloses, it alone had the power to discharge him. Under, the contract between defendant and the firm of M. P. Smith & Sons, the latter were to furnish the necessary appliances' and labor to accomplish the unloading of the vessel, except that defendant was to furnish the gear and hoisting apparatus, the steam power and the engineer or winch man to operate such machinery. It is true that Winfield L. Smith, one of said firm, when called as a witness for plaintiff, testified that “the control and the supervision and the running of the engine was done under directions and orders of M. P. Smith & Sons.” This testimony was elicited under .the skillful ■ cross-examination of shrewd and able counsel, and it is at least questioilable whether such testimony was not the conclusion of the witness rather than his “ conscious experience ” as to the facts. (Moebus v. Herrmann, 108 N. Y. 349, 354.) His testimony as to the acts of the parties established nothing more than that the employees of the said firm did indicate by signals to the engineer when it was necessary to hoist the load and when to permit it to descend, so that he might operate the machinery to accomplish this result. I doubt whether his testimony could be possibly construed to mean more than that. His testimony was that this supervision included “Instructing him to hoist the tubs out-of the hold and lower them away.” He testified to no other act of supervision, neither did any other witness, nor is there any evidence as to acts done from which ■ any other supervision may. be implied. The man who held the guy rope, and who Avas the only one shown to have given any directions to the engineer, testified, Avhen asked as to his. duties in connection Avith him, that he “ just told the winclnnau to go ahead, or to stop.” This alone Avould hot be sufficient to transfer the responsibility for the acts of the latter from defendant, his general employer, to the firm of stevedores so that plaintiff Avas barred from a recovery upon the ground that he .became for the time being his fellow-servant. The mere1 giving of this signal Avas not supervision and control of the engineer, but simply the conveying to. him of information to enable him to do the work. (Sanford v. Standard Oil Co., 118 N. Y. 571; Johnson v. Netherlands American Steam Navigation Co., 132 id. 576; Standard Oil Co. v. Anderson, 212 U. S. 215; De Maio v. Standard Oil Co., 68 App. Div. 167 ; Lauro v. Standard Oil Co., 74 id. 4; Henry v. Stanley Hod Elevator Co., 129 id. 613.)

■ I think that upon the evidence in this case the court should not have decided as matter of law that the engineer had ceased to be the employee of defendant, and had become for the time being the employee of M. P. Smith & .Sons, but should have left it to the jury under proper instructions to determine as a question of fact.

The judgmeht appealed from should be reversed and a new trial granted, costs to abide the event.

Thomas and Carr, JJ., concurred ; Woodward, J., read for affirmance, with Avhom Rich, J., concurred.

Woodwakd, J.

(dissenting): ■

The complaint in this action alleges the incorporation of the defendant, and that on the 30th day of November, 1906, while plaintiff was at work upon a certain steamship alongside the dock at One Hundred and Fiftieth street and East river, borough of the Bronx, New York city, a certain hoisting derrick or engine belonging to the defendant, and in charge of one of the servants or. employees, was só carelessly and negligently handled and operated as to cause a large and heavy iron bucket, which was being let do.vvn into the place where plaintiff was. at work, to fall upon the plaintiff. The plaintiff was in the employ of one M. P. Smith & Sons, who were, the stevedores, and who at the time of the accident were engaged in unloading for the defendant a cargo at Oak Point, N". Y. At the opening of plaintiff’s case it appeared, upon cross-examination, that the firm of M. P. Smith & Sons was to discharge the ship, furnish the labor; that the Koclc.Plaster Company was to furnish'the gear and the hoisting .and the engineer and the steam, and that the firm were not to pay' the engineer. But it was further disclosed that the arrangement included supeiwision and control of all the men; Plaintiff’s witness, replying to the question, “ What did that supervision include \ ” says : “ Instructing him to hoist the tubs out of thé hold and lower them away; that.is, included the control and -directions,of the manner in-which they were to. run their engine, so that, the controLand the supervision and the running of the engine was done under directions and orders of M. P. Smith & Sons, and their men — their employees, and that was the' arrangement under which this steamship in question on November 30th, 1906, was unloaded.” With this uncontradicted testimony from plaintiff’s witness, the. court granted defendant’s motion to dismiss the complaint, upon the obvious ground that the engineer in the general employ of the Bock Plaster Conhpany, was for the purposes .of this work in the special employ of M. P. Smith & Sons, and was, therefore, a fellow-servant of the plaintiff. There was no question of disputed facts; the witness was produced' by the plaintiff, and while he now suggests that.-the witness was unfriendly, there is absolutely nothing in the record to break the force of the testimony, that the engineer, through whose alleged negligence the accident is said to have occurred, was under the direction and'control'bf the employers of the plaintiff. Under such circumstances all the authorities agree that there is no liability on the part of the general master. This general subject was fully discussed by this court in tlie case of Breslin v. Sparks (97 App. Div. 69), and the conclusion there reached is supported by the highest authorities, and is the law applicable to this case.

The judgment appealed from should be affirmed, with costs.

Rich, J., concurred.

Judgment reversed and new trial granted, costs to abide the event.  