
    Frank Johnson, Resp’t, v. The Netherlands American Steam Nav. Co., App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed March 22, 1892.)
    
    Master and servant—Negligence—Co-servant.
    Plaintiff was a gangwayman in the émploy of L., a stevedore, who was engaged in unloading a vessel for defendant for a stipulated price per ton, defendant to furnish the steam power and a man to run the winch. The hoisting rope having fouled plaintiff was clearing it, and gave direction to the winchman to “ come back,” but instead he went ahead winding the rope up and crushing plaintiff’s fingers. Reid, that the winchman was not a servant of L., and so a fellow servant with plaintiff, and that defendant was liable for the injury.
    (Follett, Ch. J., Parker and Landon, JJ., dissent.)
    Appeal from a j udgment of the general term, second department, affirming the judgment entered on a verdict.
    
      Joseph Á. Shoudy, for app’lt; Charles J. Patterson, for resp’t
    
      
       Affirming 33 St. Rep., 916.
    
   Haight, J.

This action was brought to recover damages for a personal injury. Upon the trial there was some conflict in the testimony, but as settled by the verdict the facts are as follows r The plaintiff was a gangwayman in the employ of one Lithman,. a stevedore, engaged in unloading the defendant’s steamship, P„ Calland. Under the agreement the stevedore was to be paid a-, stipulated price per ton for unloading the vessel, thé defendant to-furnish the steam power and a man to fun the winch.' The winch-man furnished by" the defendant was a sailor. The plaintiff, as. gangwayman, gave the signal to the winchman to go ahead or-back up as the persons engaged in unloading the vessel might require. The men in the hold of the vessel had loaded nine bags-of coffee, and the plaintiff had given the signal to the winchmarb to go ahead. This was accomplished by‘the rope winding around, the drum of the winch. The hoist had proceeded until the cargo-had nearly reached the combing of the vessel, when the rope ran off from the drum of the winch onto the axle. The winchman then, stopped and called the attention of the plaintiff to the fact that, the rope was foul upon the axle "of the winch. The plaintiff then supported the hoist by means of a burton hook, after which betook hold of the rope to lift it from the axle onto the drum, but. in order to do this had to have the winch turned back so as to loosen the rope. He, therefore, gave direction to the witichmani to.“come back,” but instead of turning back the winchman went, ahead, drawing the hand of the plaintiff against the" drum cutting-off some of his fingers. .

It is claimed that Lithman was an independent contractor having charge of all the men engaged in unloading the vessel, and! that the defendant is not liable for the negligent act of servants-working under his direction. The question is as to whether thewinchman was the servant of Lithman, and consequently the co-servant of the plaintiff. Lithman testified that he was paid by the ton; that the vessel furnished the steam power and a winch driver. This is the evidence as to the contract with the defendant. It does not appear that he had the power to order, direct,, discharge or control the winch driver farther than to signal to him by way of the gangwayman when to hoist or lower, go ahead oreóme back. It consequently does not appear to us that the winch-man could be regarded as the servant of Lithman.

It is quite apparent that - it was the intention of the defendant", to retain charge of the steam power and winch and operate it, through its own servants and employees. And the fact that thewinchman received orders from the plaintiff when to hoist and whem to lower under the circumstances of this case does not operate to-change his relations to the defendant as its servant. Sullivan v. Tioga Railroad Company, 112 N. Y., 643, 647; 21 St. Rep., 827; Sanford v. Standard Oil Co., 118 N. Y., 571; 29 St. Rep., 855 Kilroy v. D. & H. C. Co., 121 N. Y., 22; 30 St. Rep., 724; Butler v. Townsend, 126 N. Y., 105; 36 St. Rep., 508.

The judgment should be affirmed, with costs.

All concur, except Follett, Oh. J., Parker and Land on, JJ.^ dissenting.  