
    James Kenny, App’lt, v. The Cunard Steamship Co. (Limited), Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed March 1, 1888.)
    
    Negligence—Master not liable for injury resulting from negligence of co-servant—Foreman a co-servant.
    The plaintiff was injured by boards slipping from a sling which had been improperly adjusted It appeared that, as a fellow servant of plaintiff was proceeding to tighten the chain of which the sling was made, and before it had been made sale, the foreman of the gang of which the fellow servant was one ordered him to let the chain go as it was. Meld, that the foreman was a co-servant within the rule exempting defendant from liability for injuries to servants resulting from acts of a co-servant.
    Appeal from judgment dismissing complaint, and from an order denying a motion for a new trial made upon the minutes.
    
      Herman H. Chook, for app’lt; Frank D. Sturgis, for resp’t.
   Per Curiam.

There was no testimony given which calls for another determination than that announced when this case was decided in a former appeal. Kenny v. Cunard Co., 52 Supr. Ct., 434.

The action was for damages for the alleged negligence of the defendant.

The plaintiff was hurt from boards slipping from a sling upon him. The sling was placed around the boards by one Wright, who was a co-servant of the plaintiff. The sling was an iron chain. It was argued by the learned counsel for the plaintiff, that there was testimony to show that, the chain was not a proper appliance or ordinarily fit for the use in this instance for which the defendant had provided it.

The plaintiff’s witnesses, however, testified that the chain would have been fit if it had been hooked about the boards in a certain way. The servants in general, and Wright in particular, knew how it should have been hooked to secure safety; and for this no skill, and only ordinary knowledge was requisite. There was, therefore, a failure to prove that the defendant had been negligent in furnishing for the work fit or proper instruments.

The chain that was used being sufficient, it is not necessary to pass upon any point made as to another kind of chain, which some witnesses said was the proper chain to use.

The accident of the boards slipping from the chain was caused by Wright tightening the chain to a degree that was less than was required for safety. This was negligence on the part of a fellow servant, if negligence at all, for the consequences of which, the defendants are liable to the 2Dlaintiff.

It is claimed, however, the defendants co-operated with Wright in this negligence, and for that reason are liable. This is based upon testimony, that when Wright was proceeding to tighten the chain, and before it had been made safe, one Graham, a foreman of the gang of which Wright was one, ordered him to let the chain go as it was. The respondent’s counsel answer that Graham was not performing any duty devolved upon the defendants, by the law as to the plaintiff, but was himself a co-servant of plaintiff and of Wright. The learned council cites several cases, and among them Loughlin v. State of N. Y., 105 N. Y., 163; 6 N. Y. State Rep., 826. The cited case sustains the proposition. It says: “Wells, although captain of the boat with power to direct those under him, was, nevertheless, a co-servant within the rule. The manner of proceeding with the work was committed to Wells. It involved the exercise of such discretion and judgment only as is committed to a foreman.”

It is not claimed that Wells was incompent for his position, and no question as to the suitableness of appliances furnished by the state arises. It is the ordinary case of mismanagement by a co-employee_ of superior grade, as to the manner of prosecuting an ordinary work in which he' and other employees acting under him, were at the time •engaged.

• The judgment and order should be affirmed with costs.  