
    Mary A. Sweeney, as Administratrix of John Hanlon, Deceased, Pl’ff and Resp’t, v. The New York Steam Co., Def’t and App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 3, 1889.)
    
    1. Negligence—Master and servant—Contributory negligence— Question for jury.
    The plaintiff's intestate was employed by defendant to attend the guy rope attached to a hoisting bucket for unloading coal, as it was raised and lowered, to prevent it from striking against the boat or the wharf. By some unexplained means the guy rope caught his leg and he was hoisted up feet foremost about fifteen feet, and a boy, about sixteen years of age, who had been left in charge of the hoisting engine by the engineer during the engineer’s temporary ab ence, let the plaintiff’s intestate down so swiftly that he fell into the hold of the boat and was so severely injured that he died. In an action for damages for the injuries received by him, the trial judge rightly left it to the jury to decide whether, under the circumstances, the injury was proximately caused by the defendant’s negligence in permitting the boy to run the engine, notwithstanding the plaintiff’s intestate’s negligence in permitting himself to be caught by the rope. The injury was received, not by his going up, which was caused by his own want of care, but by his too hasty coming down, caused by the boy’s want of skill. Larrbmore, Oh. J., dissenting.
    2. Same—Proximate cause.
    An injured party, or his representatives, may recover damages for an injury caused by' defendant’s negligence, notwithstanding the injured party’s own negligence exposed him to the risk of the injury, if such injury was proximately caused by defendant’s omission to use ordinary care for the purpose of avoiding the injury after being aware of the danger.
    3. Same—Bight of assumption by servant that competent workmen ARE EMPLOYED.
    Nor can the master claim that he is not liable for injuries resulting from the carelessness of a co-servant, if he employs unskillful or incompetent workmen where these are needed to direct or assist the performance of the work. The servant has a right to assume that only competent workmen are employed.
    4. Same—Trial—Instructions toi jury—Evidence.
    It was not error in the trial judge to refuse to charge the jury, on defendant’s request, “that if no notice was given to or received by an officer of the defendant responsible for its general conduct, that the boy was running the engine, the plaintiff could not recover,” inasmuch as there was some proof on that point.'
    Appeal from a judgment enteren on a verdict of a jury for $1,200 damages to the next of kin, by reason of defendant’s alleged negligence, causing death.
    The facts are sufficiently stated in the opinions.
    
      J. W. Hawes, for app’lt; Henry Schmitt, for resp’t."
   Bookstaver, J.

I cannot concur in tne opinion of the learned chief judge in this case. Assuming for the present that the evidence conclusively establishes that the deceased’s leg became entangled in the guy-rope managed by him entirely through his own negligence or inexperience, and as a result he was hoisted head downwards from ten to fifteen feet above the deck of the boat on which he was working, it would not necessarily follow that his representatives could not recover in this action.

For it is well settled that an injured party, or his representatives, may recover damages for any injury caused by defendant’s negligence, notwithstanding the injured party’s own negligence exposed him to the risk of the injury, if such injury was proximately caused by the defendant’s omission to use ordinary care for the purpose of avoiding the injury after being aware of the danger Austin v. N. J. S. Co., 43 N.Y., 81; Silliman v.Lewis, 49 id., 383; Shearman & Redfield on Neg. (4th ed.), § 99, and authorities there cited.

The question then is, whether the deceased’s injuries were proximately caused by his own negligence or by the negligence of defendant or its servants. Conceding his suspension was caused by his own act, he did not fall because his weight drew his foot through the coil of rope by which he was suspended, nor did he fall because of any exertion on his part, either of which would have been his own act and the proximate cause of his falling, nor did he fall because the machinery employed was not calculated and could not reasonably have been required to support his additional weight. The learned chief justice himself says the deceased hung suspended for a short time, and “was unable to slide down the rope, because it was wound around his leg.” So his falling into the hold of the boat, and consequent injuries, were not and could not have been proximately caused by his suspension; those arose from the rapidity with which he had dropped into the hold. But the carelessness of the deceased in the management of the guy-rope by which he became entangled is the only negligence of the defendant relied on by the chief judge to defeat his recovery.

Counsel for the appellant, upon the argument, also claimed that if the lad in charge of the engine was so notoriously unfit for the duty assigned him, then it was negligence on the part of Hanlon in giving the direction to “lower him easy.” But granting that he was incompetent, there is no evidence in the case tending to show that the deceased knew of this, for he had been at work for the defendant not more than twenty minutes when the accident happened, and consequently knowledge of incompetence will not be assumed in the absence of some proof of it.

It was also claimed that the injuries resulted from the carelessness of a co-servant, for which the defendant is not liable.

But a master owes the duty to his servants of employing skillful and competent workmen where these are needed to direct their labor, or assist in the performance of their work, and the servants have a right to assume that only such workmen are employed. Pantzar v. Tilly Foster Mining Co., 99 N. Y., 368; Booth v. Boston R. R. Co., 73 id., 38; Abel v. Delaware and H. C. Co., 103 id., 581; 4 N.Y. State Rep., 269, and many cases which might be cited.

I therefore think the trial judge was right in refusing to dismiss the complaint upon defendant’s motion, either when plaintiff rested or at the close of the case, and in leaving the question of the defendant’s negligence to the jury, as he was bound to do, and that the instructions given it on that subject were correct. Nor can I find any error in the judge’s charge respecting the negligence of the defendants. He refused to charge 1 ‘ that there is no evidence of any notice to the defendant, or to any of its officers responsible for its general conduct, >of the fact, if it be a fact, that the boy Crowley was allowed by the engineer to have charge of the engine.”

But he had already fully and correctly charged the jury on this point when he said “if they (the company) employed a competent engineer, and they did not know he was transferring his duties to somebody else, they would not be liable; but if they permitted an incompetent person to share the duties of an engineer,- then they would be liable. Baker and the engineer were, of course, not laborers like the deceased and Carroll and Nellilcer; their grades of employment were different, but they were nevertheless fellow-servants, and the negligence of a fellow-servant is one of the risks of the employment which every employee takes. It is the negligence of the master that must be established to make the master liable.” And also defendant’s request that if no notice was given to or received by an officer of the defendant responsible for its general conduct that the boy Crowley was running the.engine, the plaintiff cannot recover.

The request wras also improper because it required the court to say that there was no evidence of any notice, whereas there was some proof upon that subject, which brought it -within the province of the jury to determine the fact, and it was not the province or duty of the court to do it for them.

The other exceptions to the charge are sufficiently noticed in what has been before said. They are based either upon the original negligence of the deceased, which, as I think, was not the proximate cause of the injuries, or upon the negligence of his fellow-servant, or upon the absence of proof when there were some evidence to go to the jury. •

The exceptions to the admission or rejection of evidence seem to me to be equally untenable, and the judgment should, therefore, be affirmed with costs.

Allen, J., concurs.

Larremore, C. J.

(dissenting).—On the 25th of January, 1884, plaintiff’s intestate was employed by an employee of defendant to assist in the unloading of coal belonging to defendant, from a canal boat lying at a dock in the North river. The tackle used, including the hoisting power furnished by a steam engine, belonged to defendant. The work that said inféstate undertook to perform was to “tend guy rope,” that is, by means of a rope that was part of the tackle, to steer the buckets of coal as they were raised or lowered, and prevent them from striking against the boat and the dock in transit. Plaintiff’s proof shows that after the intestate had been so engaged for about twenty minutes, by some unexplained means said guy rope caught said intéstate’s leg, and, taking two or three turns around it, carried him up, head downward, with a rising bucket, from ten to fifteen feet above the deck. He hung suspended for a short period, being unable to slide down the rope, because it was wound round his leg. It appears that he called to the person in charge of the engine to lower him slowly, and further, that it would have been possible to let him down so gradually that no injury would have resulted. But the person, at the time, in charge of the engine was "lot the regular engineer, but a boy about sixteen years of age whom the engineer had deputed to take his place.

It is alleged that said boy was incompetent, and that he, moreover, became frightened, and, instead of lowering slowly, adjusted the engine so that said intestate fell, with the bucket, into the hold of the boat, sustaining injuries whereof he died.

The theory upon which plaintiff claims to recover is that defendant is chargeable with notice of the fact that the engineer was in the habit of allowing this boy to take his place, and that, therefore, it knowingly suffered an incompetent person to operate dangerous machinery, and is liable for the consequences. But it is unnecessary for us to discuss this question, for the reason that if all that plaintiff contends for were allowed, the case is fatally defective, because there is nothing that shows, or tends to show, the absence of contributory negligence. On the contrary, such facts as do appear raise a strong presumption that the accident could not have happened unless the intestate had been negligent.

Ordinarily in an action brought by the representatives of a deceased person who came to his death through such a casualty, the court would incline to be as indulgent as possible in the matter of affirmative proof of this negative. The law does require some evidence that the injured man was not negligent. But where his lips are closed by death, and no other person is acquainted with every minute occurrence at the time, courts will lean towards accepting slight circumstances tending to show absence of contributory negligence was sufficient to make out a prima facie case. But no such favorable presumptions can be entertained in the case at bar. The deceased had sole charge of the guy-rope; no other person interfered with him in the discharge of his duty. To tend said rope was moreover his only duty. He was to give his undivided attention to its management, and as there was nobody with whom he could divide the responsibility, if anything went wrong in connection with it the only possible inference to be drawn is that it was through his own negligent performance of his work that the rope became twined about his leg.

It is not shown that the bucket was being raised at an unusual or negligent rate of speed at the time of the mishap. Plaintiff relies solely on the fact that it was improperly and carelessly lowered, and of this there can be little doubt. If it appeared affirmatively that the bucket was elevated by the boy at a very rapid speed it might be argued that the intestate did not have time to free himself from the coils of rope. I have not overlooked the testimony of the witness Nelliker, viz.: “The boy raised and lowered the tub differently from what it is done by the engineer. Sometimes he ran it away up quick and then down with a run and stopped it short, and he would laugh at us jumping away.”

This refers merely to an occasional practice. There is no testimony that the bucket had been raised too quickly on the day of the accident. The reason for the rapid lowering then, was the boy’s sudden agitation, at seeing the man suspended in air, and not any disposition to indulge in levity.

We arrive at our conclusion from a consideration of plaintiff’s own evidence. One necessary link in the chain of causation preceding the accident, was the intestate’s negligently allowing himself to be caught by the guy rope. Though we have not relied at all on the evidence of defendant’s witness Mangam, yet we would advert to it here as confirmatory and corroborative of the result reached. He testifies (fol. .Ill) that he spoke with the intestate immediately after the accident, and that the latter said:

“I got a little crack on the head; it don’t amount to much; it was my own fault; if I had been attending to my business, it would not have happened.”

It follows that the complaint should have been dismissed, and the judgment appealed from should be reversed and a new trial ordered with costs to appellant to abide the event.  