
    (69 Hun, 131.)
    McCAMPBELL v. CUNARD STEAMSHIP CO., Limited.
    (Supreme Court, General Term, Second Department.
    May 8, 1893.)
    1. Master and Servant—Risks on Employment.
    Plaintiff, an employe of defendant steamship company, was furnished with a. flat truck, and ordered by defendant’s superintendent to. truck cylindrical drums of caustic soda from the deck to the dock over a skid at a very steep angle. The skid was furnished with mouthpieces at either end, so as to follow the swaying of the ship. On starting down the skid, drawing the truck after him, the cylinders began to move forward, owing to the insufficient means furnished to keep them stationary, and plaintiff started to run to the dock, but on reaching it the wheels of the truck caught in a space between the skid and the mouthpiece, caused by defective fastening, and a drum rolled off the truck on him, crushing his leg. If the mouthpiece had been properly fastened, he could have escaped; and the opening between the skid and mouthpiece was not shown to have existed when plaintiff went to work. Meld, that plaintiff had not assumed the risk of such defect, and that a judgment for defendant must be reversed.
    2. Same—Eellow Servants.
    In such case the superintendent was not a fellow servant of plaintiff.
    Appeal from circuit court, Queens county.
    Action by Daniel McCampbell against the Cunard Steamship Company, Limited, to recover for personal injuries sustained through defendant’s alleged negligence. There was judgment for defendant, and plaintiff appeals.
    Reversed.
    Plaintiff, a longshoreman,- was employed by defendant steamship company to assist in unloading cargoes from defendant’s ship. On the morning he received the injuries complained of he and a coemploye were directed by defendant’s superintendent to truck drums of caustic soda from the deck of a ship to the dock, and for this purpose were furnished with a flat-topped truck with a handle. The deck of the ship was about nine feet higher than the dock, and the skid over which the loads were to be trucked was about 20 feet long, and provided at each end with a wedge-shaped mouthpiece, fastened to the skid by ring bolts and lanyards at either end of the skid and mouthpiece. When properly fastened, according as the ship sways, the mouthpiece follows the skid, and moves back and forward in the dock. No appliance was furnished to prevent the drums from rolling off the truck except small pieces of wood placed in front of the truck. Plaintiff and his coemploye loaded two drums on the truck, placing pieces of wood in front of them to keep them from rolling, and plaintiff then started down the skid, pulling the load, and when nearing the dock noticed that the pieces of wood were slipping from under the drums, and the drums about to roll on him. He started to run to the dock, but the lanyards were loose, leaving an -opening of several inches between the skid and mouthpiece, in which the wheels of the truck caught, the jar throwing him down, and causing the drum to roll forward on his legs, crushing them. Plaintiff had never unloaded drums of soda in that way before, and did not know or realize the insecurity of the appliance furnished him, and better appliances were furnished by all the other steamship companies along the dock.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    George William Hart, for appellant.
    Owen, Gray & Sturges, ((Frank D. Sturges, of counsel,) for respondent.
   PRATT, J.

It is clear that the truck was not a proper vehicle on which to move the drums down an inclined plane, and it is certain that the skid was placed at a dangerously steep angle. Whether the plaintiff could recover on these grounds may be doubtful, as it might be said that the danger was obvious, and he took the risk. To a certain extent a laborer may rely on the presumed superior knowledge of his employer, and perhaps it was a fair question for the jury whether he might do so in this instance. We need not pass upon these questions, as we think another point is presented which requires a reversal. Both witnesses testify that, had the mouthpiece been properly attached to the skid, so as to follow its motion, the plaintiff could have escaped. The gap of some inches left between them is not shown to have existed when the plaintiff went to the work. That would vary from moment to moment, as the vessel rolled. That was a danger we cannot say plaintiff accepted. No such gap should have been permitted, and that it existed was the fault of the superior, or his alter ego. The stevedores did not rig the vessel for the work, and the superintendent was not a fellow servant with the plaintiff. Judgment reversed, new trial ordered, costs to abide event. All concur.  