
    (90 Hun, 65.)
    KANE v. MITCHELL TRANSP. CO.
    (Supreme Court, General Term, Fifth Department.
    October 16, 1895.)
    1. Master and Servant—Fellow Servants—Deck Hand and Grain Scooper.
    A deck hand of a vessel discharging a cargo of wheat into an elevator is not a fellow servant of a “scooper,” who works in the hold of the vessel shoveling out the wheat, where entire charge of the work is given to a “boss scooped” appointed by the elevator company, and he is paid by the company a share of its charge for transferring the wheat to the elevator, and the boss scooper employs, discharges, and pays the scoopers, but has no control over the vessel or its crew, or the work performed by them on the vessel wjiile the work of unloading is in progress.
    3. Death by Wrongful Act—Damages.
    Deceased was a sober, industrious, unmarried man, about 26 years old, and earned about $400 during each season of navigation. He left a widowed mother and adult brothers and sisters, but was not shown to have ever contributed to their support. Held, a verdict for $3,000 damages for his death was not excessive.
    Appeal from circuit court, Erie county.
    Action by Roger Kane, as administrator of Edward O’Toole, deceased, against the Mitchell Transportation Company, to recover damages for the death of plaintiff’s intestate alleged to have been caused by the negligence of defendant. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.
    Argued before LEWIS and BRADLEY, JJ.
    F. E. Tarsney, for appellant.
    John Laughlin, for respondent.
   LEWIS, J.

The deceased, Edward O’Toole, on the 22d day of October, 1892, was working as a scooper, assisting in unloading a cargo of grain from a steam barge, known as the “A. Folsom,” which belonged to the defendant. The grain was being elevated into the Evans elevator, in the city of Buffalo. While thus engaged, a piece of timber, belonging to and used upon the deck of the vessel, was negligently allowed to fall down the hatchway of the vessel into the hold by one of the deck hands of the vessel. In falling, it struck and killed the deceased. The deck hand was, at the time, in the employ of the defendant, working upon the deck of the vessel, and had occasion to move the piece of timber. There is no controversy as to the foregoing facts, and no question is made as to the deceased being free from negligence contributing to his death.

Two questions, and two only, are argued by the appellant’s counsel. It is his contention that the deceased and the deck hand were both in the employ of the vessel, and were therefore fellow servants. The business of transferring grain from vessels into elevators at the port of Buffalo has been carried on for years by all the elevators of the city in the following manner:

At the opening of navigation in the spring of the year, each elevator appoints what is known as a “boss scooper” for the season of navigation. He is given the entire charge of elevating grain out of vessels into the elevator. For that purpose he has charge of that portion of the machinery of the elevator which is used in connection with the vessel. He employs and discharges and pays his assistants, who are known as “scoopers.” Neither the elevator nor the vessel has anything to say or do as to whom he shall employ. He, with his men, attends to removing the grain from the hold of the vessel. A uniform price for this -work is charged by all the elevators of the city. The charges are paid by the vessel. As a matter of convenience to all parties concerned, Mr. Cook, who is the general' secretary of the association of elevators of the city, receives from all. the vessels the money paid for elevating grain, and, at the end of each week, he pays to the boss scooper his proportion of the moneys so received during the week, and pays the balance thereof to the elevator. The proportion to which each is entitled is fixed by agreement between the elevator and the boss scooper, at the commencement of the season. The boss scooper divides the money paid to him among the scoopers in his employ, pro rata, according to the number of hours each has worked during the week, retaining therefrom to himself an amount equal to that coming to the scooper who has worked the greatest number of hours during the week. Neither the master nor the owner of the vessel has anything to do with selecting the elevator. That is determined by the consignee of the cargo. The master places his vessel at the elevator, and attends to moving his vessel when it becomes necessary so to do to facilitate the unloading of the cargo. After the scoopers have removed all the grain they can with their shovels, the vessel’s crew attend to sweeping the decks and the hold of the vessel. The work of sweeping the decks is sometimes commenced by the vessel’s crew before all the grain is removed. The boss scooper has no supervision or control over the vessel or its crew, nor of the work performed by them in and about the vessel, while the work of unloading is in progress.

A Mr. Eagan was the boss shoveler at the Evans elevator, and was in charge of the work of unloading the cargo of the Folsom at the time of the accident. He employed his assistants, including the deceased. It is true, as claimed by the appellant’s counsel, that the scoopers and the crew of this vessel were engaged in a common undertaking. The scoopers were removing grain out of the vessel. The crew were sweeping up its decks. All of this work was necessary to be done to put the vessel in condition to take on and transport another cargo. It cannot, however, with any propriety be claimed that they had a common employer. While the money received by the scoopers came to them indirectly from the vessel, it was not received by them pursuant to any contract or arrangement between them and the owner of the vessel. The latter, so far as appears, had no knowledge as to the portion of the elevator charges the scoopers were entitled to. Had the owners of the Folsom refused to pay for elevating the grain, neither the deceased nor Eagan could have maintained an action against the vessel for services performed.

The defendant would not have been liable for the negligent act of a scooper while he was engaged in removing the cargo. The deceased and the deck hand were not, we think, fellow servants, within the meaning of the rule exempting an employer from liability for an injury to one employé by the act of another. Under the evidence, the case was properly submitted to the jury. Our conclusion is sustained by the following cases: Svenson v. Steamship Co., 57 N. Y. 108; Sanford v. Oil Co., 118 N. Y. 571, 24 N. E. 313; Johnson v. Navigation Co., 132 N. Y. 576, 32 N. E. 505.

The appellant’s counsel contends that the verdict was excessive. He claims that, under the evidence, the plaintiff was not, in any event, entitled to more than nominal damages. The verdict was for $3,000. The deceased was 26 years old at the time of his death. He was unmarried. He was an industrious, sober man. He had been working for a number of years, during the season of navigation, in the city of Buffalo, shoveling grain from elevators. He earned at that business, upon an average, about $400 a season. He left a widowed mother, 65 years of age, who resided in Ireland with a brother of the deceased. He had no property. He left brothers and sisters, some of whom reside in Ireland; the others, in this country. All of them were adults, and were supporting themselves. The deceased was the youngest óf the family. He was not shown to have ever ■ contributed anything to the support of his mother or his other relatives. Under these circumstances, it is claimed by the appellant that his next of kin suffered no pecuniary loss by his death.

It is impossible to lay down any well-defined rule to guide courts and juries in determining what pecuniary damages, if any, the next of kin sustain in these negligence cases. Whether a young child will live to arrive at an age when he will be able, by his labor, to accumulate property, and, if so, whether his next of kin will ever derive any benefit from his earnings, cannot in any way be demonstrated; and yet verdicts of substantial amounts, in actions for the negligent killing of small children, are sustained. And such verdicts are sustained in the case of the death of people who are quite' advanced in years. While the deceased had not been in receipt of an income which enabled him to lay by very much of his earnings, what his income might have been in after years, had he lived, cannot, of course, be known. The jury were furnished all the light upon the subject that the circumstances of the case permitted, and they determined that the next of kin had sustained $3,000 damages by the deceased’s death. That sum is probably larger than we would have awarded, had the question been before us for decision. The jury, upon whom, under our system of administering justice, is imposed the duty of deciding such questions, determined the amount, and we cannot say that it was so large as to indicate that any improper influences probably entered into their deliberations. ■

The judgment and order should be affirmed.  