
    Patrick McDermot, Resp’t, v. Brooklyn City Railroad Company, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1894.)
    
    Master and servant—Appliances—Question of fact.
    Where, in an action for injuries to a servant, the master contends that the injury resulted from the act of a.fellow-servant, and the servant contends that such act would have been harmless, if. sufficient appliances had been furnished, the matter is properly submitted to the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff.
    
      Morris & Whiiehouse, for app’lt; Roswell H. Carpenter (A. H. Dailey, of counsel), for resp’t.
   Dykman, J.

It is the claim of the plaintiff that he was sus-. tained serious personal injuries by reason of the negligence of the' defendant, while he was in the service of that company, assisting in unloading stone from a scow. It appears from the testimony that the stones were in the hold of the scow, and, for the purpose of unloading them, they were placed in buckets, which, when filled, were raised by a rope suspended from the boom of a derrick, which was standing on the dock near the boat. When the buckets were raised to a sufficient height, they were swung over a wagon standing alongside of the boat ready to receive them. It was the duty of tbe plaintiff to stand in the wagons, receive the buckets as they swung to him, and unload the stone into the wagons. He was engaged in the performance of that duty when he was injured. His claim is that the bucket swung out beyond him, and, as it swung back, it struck him, and knocked him off of the-wagon. The precise claim of negligence is that there was no tag rope attached to the end of the boom ; that it was usual to have such a rope with one end fastened to the dock, and the other end to the boom, so that, when the boom swung over the wagons to unload the buckets, and return, it could only swing so far, either off shore or on the land; that, while the bucket which injured the plaintiff was in the air, the boat was moved forward, and as there was no tag rope to hold the boom, and prevent it from swinging around the mast of the derrick, the bucket was carried around -themast, and then returned with a sweep, and struck the plaintiff. In short, the claim is that the absence of the tag rope caused the injury, and that the failure to provide one was negligence, because that rope, with sufficient slack only to allow the boom to carry the bucket over the wagon and back to the proper part of the boat, would enable the man holding the guide rope to control the movement of the bucket.

The defense was twofold: First, that the plaintiff was not in the employ of the defendant; and, second, that his injury resulted from the carelessness of his fellow servant. The facts upon which the first defense is based are these: The answer admits the employment of the plaintiff by the defendant. The defendant paid the men employed by Ward. The plaintiff insisted upon the trial that-the arrangement with Ward simply authorized him to furnish the machinery, materials, and men for the defendant, and the defendant paid them, and could discharge them at will. They were all the servants of the company. The trial judge left the question to the jury as one of fact, in the following language: “So I leave it to you to say whether the doing of this work was under the direction and control of the Brooklyn City Railroad Company or not. If you find that it was, and that this foreman was acting for the Brooklyn City Railroad Company, then the question arises whether he was negligent in having this boat moved forward with this boom without a tag rope. That is all the question of negligence that there is in this case. You have heard one witness say that it is usual for derricks to have a tag rope fastened to its end, and the other end of the rope fastened to the dock, so that, as the boom goes into the dock to unload the bucket and swing back, it can only swing back so far, probable lengthwise of the boat, and not continue to swing. The difficulty with this boom was it did not sw-ing out beyond and hit this man, but, having swung out beyond, it swung back to the dock with increased velocity; so that the man with the guide rope could not hold it, and so struck him on the wagon, and knocked him off. Was there any negligence in the foreman’s moving this boat forward with the boom liable to swing in this way? And if their men did pull it along the dock a few feet, as they stated, did that cause the boom to swing out in the way it has been said?”

Again he said: “If you find that the defendant was in control and direction of this work, and moved this boat forward, the question comes down in the case to that, and that alone, so far as I can see, whether it was a negligent thing to move the boat forward without having a tag rope on the boom.”

Again the trial judge said in his charge: “There is no way to fasten negligence on the company, unless you find that they have not furnished the sort of appliances they should have furnished, if they were the ones that furnished this thing at all. You will have first that they were in control of it, and did it. Mr. Whitehouse: I ask your honor to charge that if the jury find the derrick and the work they were or was under the charge and control of an independent contractor, Ward and his men, the defendant cannot be held liable. The Court: I so charge.”

There was no exception to the charge. The claim of negligence on the part of a fellow servant is based upon the order of the foreman to move the boat forward at the particular time he did, before the wagon was loaded. The plaintiff answers that contention by saying that the movement of the boat would have been harmless if a tag rope had been in use. We think these questions required the submission of the case to the jury, -.and the verdict is supported by facts which we must assume ¡were found by the jury.

The judgment and order denying the motion for a new trial on the minutes of the court should be affirmed.

All concur.  