
    SUPREME COURT, APPELLATE TERM,
    MARCH, 1902.
    Joseph Kelly, Respondent, v. Timothy Hogan, Charles W. Hogan and Jefferson Hogan, Doing Business as T. Hogan & Sons, Appellants.
    Appeal by defendants from a judgment and order of the General Term of the City Court of the city of Hew York, affirming a judgment in favor of the plaintiff entered upon the verdict of a jury, and affirming order denying defendants’ motion for a new trial. . ¡
    Weeks, Battle & Marshall (H. Snowden Marshall, of counsel), for appellants.
    Louis Steckler, for respondent.
   Ebeedmah, P. J.

The plaintiff recovered damages for personal injuries sustained by him by reason of the breaking of a rope while engaged in defendants’ service. The • recovery proceeded upon the theory that the defendants, as masters, had negligently permitted the rope which broke, to- be and remain in an unsafe• condition. The rope was used to hoist some barrels from a dock upon a ship, lying alongside, by the defendants who were stevedores. The plaintiff was employed by them- as a longshoreman, and, together with another man, was engaged in putting slings upon barrels of beef. His duty was, after slinging the barrels, to hook them, on to a fall, which was drawn up through a block or pulley reefed on to the mast of the ship. After he fastened the sling to- the rope coming down from the ship to the dock, the barrels were pulled up on to the ship by a steam engine. He had worked at this business for twelve or fourteen years. At the time of the accident he had attached two barrels to the fall, and had seen them go up. He and the man with him rolled in two- other barrels, and were just reefing the sling to them, when the two barrels he had hooked on before fell and struck him, and severely injured him. The two barrels were lifted about ten feet up along the skid leading toi the ship before they fell, and were being hoisted at the time they fell. The breaking of the rope caused the barrels to fall. The rope broke about thirty feet above the hook which he fastened to his sling. The fall in question had been rigged-up on the night of the accident by a so-called, gangwayman, named John Stone. He was one of the longshoremen in defendants’ employ, and it was his duty to watch the fall and report to the foreman, John T. Horton, when it needed renewing. During the trial of this case Stone was sick and was not produced, nor was his testimony procured. The evidence, however, clearly showed that whenever a fall looked in any way bad at all, the duty of the gangwayman was to inform the foreman, and that thereupon a new fall was immediately procured from a storeroom on the dock in charge of one John P. Dugan, who was also in defendants’ employ, and always kept a supply of falls on hand. ...

At the trial both parties gave evidence, and the case was submitted to the jury against the objection of. and exception duly taken by the defendants. In order to determine whether the case was properly allowed to go to the jury, whether they were correctly instructed, and upon what basis -their verdict for the plaintiff must be deemed to rest, the instructions given to the jury relating to- and bearing upon defendants’ liability must be examined somewhat in detail.

In the course of the general charge delivered by the court the jury were instructed to the effect that, if it was the-duty of the gangwayman Stone to look after the rope in question, and he was negligent in the performance of such duty, the defendants were not liable; but if it was not his duty, but the duty of the foreman Horton, the latter was not a coemployee or oolaborer with the plaintiff, and the defendants were 'liable for his negligence, if there was any. To this was added the’ following, viz.: Gentlemen, if, after looking over this whole case, you determine that the rope in question was defective and dangerous, and that in its selection the defendants did not exercise ordinary- care and diligence, then, in that event-, if the plaintiff himself was free from contributory negligence, the plaintiff would be entitled to a verdict.” - -

After the conclusion of the charge the instruction relating to Eorton and the liability of the defendants for his negligence were duly excepted to, and the court was requested to charge that Eorton was a fellow-servant with the plaintiff, and that the plaintiff could not recover for his negligence. This request was refused and the defendants duly excepted.

The court, however, in passing upon defendants’ requests, instructed the jury to the following effect, viz.:

(1) That where the machinery is not machinery which the defendants themselves are fully capable of dealing with, they do perform their full duty when they go to the best concern in the market, and get the best things available for the purpose;

(2) That the general rule that a master owes to his servant the duty to keep a rope used by the servant in order, and that he cannot delegate that duty so as to escape the responsibility, does not apply to the defects arising in its daily use, which are not of a permanent character, and do not require the help of skilled mechanics to repair, but which are usually remedied by a workman; and to repair which proper and suitable materials are supplied;

(3) That there was no evidence upon which a finding could be based that any of the other appliances, the pulleys, drum or anything else, were in any way out of order; and that the jury could not find that the other appliances were other than proper;

(4) ■ That any suggestion made by the court that the jury might find that the rope in question had been injured by passing over some appliances, was withdrawn;

• (5) That if the jury find that- when the rope was put in operation, reasonable care was used to provide a proper and safe rope, and that if thereafter some hidden or latent defect appeared in the rope, of which the defendants had no notice, then the verdict of the jury must be for the defendants;

(6) That if the jury find that the defect in the rope prior to the accident was not discoverable by the exercise of ordinary care, but was a latent or hidden defect, their verdict must be for the defendants; and

(1) That if the jury find that the rope was reasonably fit for use when it was rigged and become defective or weak by too long or too great use, it was the duty of the gangwayman to renew it, and that if he did not watch the rope and prevent its too great use before being removed, the verdict must be folr the defendants.

A careful examination, of these instructions, in. connection witn the evidence in the case, manes it clear that the verdict in favor •of the plaintiff must he deemed to have been rendered by the jury upon finding that there was a detect in the rope which was not discoverable by the gangwayman Stone, but which should have been discovered by the foreman Morton, that the failure of Norton to discover it was negligence, and that for his negligence the defendants are responsible, because he was their representative in that respect, and not a mere fellow-servant with the plaintiff.

The question then arises whether there is sufficient evidence to support the verdict as rendered upon the assumption, for argument’s sake, that Morton was to all intents and purposes the representative of the defendants. Upon the whole case the exact cause of the breaking of the rope remains undisclosed. Mo discoverable defect has been pointed out. On the contrary the testimony shows affirmatively that great care was taken by the defendants in procuring good ropes; that they were supplied by the Atlantic Transport Company which bought from manufacturers of good reputation ropes of the best quality; that the rope had been tested in the ordinary and practicable way by the storehouse keeper before it was sent out for use; that the load on the rope at the time that it broke, was small compared to the carrying power of a rope of the dimensions which the rope in question had; that the time during which the rope had been used, was very short compared with the time that such a rope is usually used with safety; that no defect had been noticed by. any of the men working on the job; and that if any defect had been noticed, there was at the time an ample supply of ropes of the best quality on hand which were always furnished immediately if any complaint was made. For these reasons the evidence is utterly insufficient to establish negligence in Norton or the defendants, and at the close, of the case the plaintiff’s complaint should have been dismissed, or a verdict directed for the defendants.

But even if it could be held that there was sufficient evidence in other respects to carry the case to the jury, the learned trial judge erred in charging the jury that Morton was in the matter under investigation the representative of t-hei defendants, a.nd in refusing to charge that he was a mere fellow-servant with the plaintiff. Upon the facts disclosed in this case he was as against the plaintiff a mere fellow-servant within the rule laid down in Cregan v. Marston, 126 N. Y. 568; Hart v. New York Floating Dry Dock Co., 48 N. Y. Super. 460; Kenny v. Cunard S. S. Co., 52 id. 484.

The judgment must be reversed and a new trial ordered, with costs to the appellants to abide the event.

Giegerich and Greenbaum, JJ., concur.

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