Svenson v. . Atlantic Mail Steamship Co.

Earl, C. The complaint alleges, and the answer admits, that at the time of the accident, the defendant owned and had the charge, control and management of the steamship. The answer does not expressly aver that the man who threw the bale upon *111 the plaintiff was not its servant. It simply denies that it was done through the negligence of defendant’s servant. It is clearly inferable, from the evidence, that the man who threw the bale was not employed by the owners of the lighter. He was employed by some one upon the steamship. All the proof we have is, that he was engaged upon the steamship in discharging her cargo upon the lighter, and this proof, taken in connection with the admission in the answer referred to, was sufficient to authorize the jury to infer that the man was a servant of the defendant at the time, and working for it. A mere admission of ownership would not have been significant, but the admission, that at the time the defendant controlled and managed the vessel, unexplained, leads inevitably to the conclusion, that those who were then employed upon her were the servants of the defendant. It will not do to presume that they were trespassers or mere volunteers, or that they were employed by persons having no connection with the vessel. In Norris v. Kohler (41 N. Y., 42), it was held that it was proper to infer that the driver of a wagon, who caused an injury to the plaintiff’s intestate, was a servant of the owner, from facts less significant than those which exist in this case. The proof showed precisely how the plaintiff was situated at the time of the accident and his conduct, and it was properly submitted to the jury to determine whether there was any negligence on his part contributing to the accident, and their determination is conclusive upon us. There was no proof that the plaintiff and the man who caused the injury to him were fellow servants. The latter was in the employment of the defendant, engaged in unloading the cargo from the steamship upon the" lighter. The former was in the service of the owners of the lighter, in receiving the cargo and transporting the same to the city of Hew York. They were not the servants of a common principal in any sense, and they were not strictly engaged in the same employment. The duties of the one were confined to the steamship, and of the other to the lighter. Hence, this case does not fall within the rule that an employer is not *112 responsible for an injury occasioned to one employe by another engaged in the same general services "or undertaking. In Smith v. New York and Harlem Railroad Company (19 N. Y., 132), Judge Selden says, “ the rule applies only where the action is brought for an injury to a servant or agent against the principal, by whom such servant was himself employed.” In Sherman and Redfield- on Negligence, 116, it is said, “ they are not fellow servants unless they are all under the control and direction of a common master.” Hence, this rule furnishes no objection to the maintenance of this action. The judgment must therefore be affirmed, with costs. All concur. Judgment affirmed.