Belt v. Henry Du Bois' Sons Co.

Hibsohbebg-, P. J.: It would seem from the evidence that the defendant, a domestic-corporation, is engaged in the dredging and piledriving business. The plaintiff was injured while working in its employ at one of the-piers at Hoboken. He was engaged at the time in placing a fender between a piledriver and a dredge belonging to the defendant, and was crushed between them as he claims by a tug coming up against-either the piledriver or the dredge negligently and without warning. The tug also belonged to the defendant and was a part of the-dredging outfit. It was used for 'the purpose of towing the pile-driver and dredge from place to place, and for bringing to them lumber, coal, water, food and other material as might be required in the conduct of the business. The negligence charged against the-defendant is that of the captain of the tug in coming up against the-other vessels on the occasion in question without giving a signal of his approach, and if he is to be regarded as a fellow-servant of the-plaintiff it is manifest that the judgment cannot be sustained. The question of furnishing a safe place to work in is not presented. The place where the plaintiff was required to work was-reasonably safe in itself. The dangerous condition was occasioned by the manner in which the work was being done at the time, viz.,, in the performance of that detail of the work which consisted in bringing necessary material and supplies to the men engaged upon the dredge and piledriver. Although the work of the captain of' the tugboat was different in its nature and character from that performed by the men upon the other vessels, the labor of all united, in the prosecution of a common enterprise under the employment-of a common master, and they are accordingly to be deemed fellow-servants with respect to all acts excepting those which the law [394] imposes upon the master as his'-specific duties. If was early held by the Court of Appeals in Coon v. Syracuse & Utica Railroad Co. (5 N. Y. 492) that the rule absolving an employer from liability to •one servant for the negligence of another was applicable notwithstanding the -employments of the servants were, separate and -distinct^ provided both were necessary to the prosecution of a"-common •enterprise. The same doctriné Was- applied in the decision of the* -case of Boldt v. New York Central Railroad Company (18 N. Y. 432), a. case which cannot be distinguished in principle from the one •:at bar.' There a laborer was employed to gravel a new and unfinished railroad track upon which no train had ever been run, and while walking upon it towards the place where he was to commence his day’s work he was overtaken and injured by a passenger train rusing the new track in consequence of a_temporary obstruction upon "the old one. The court said (p. 433): “ The plaintiff who suf-. -fered and the persons who caused the injury were in the service of one employer — the railroad, company — the plaintiff in preparing a "track and the others in running trains, but both in the common -enterprise of maintaining and operating the railroad.” It was. -accordingly held that there could be1 no recovery. For other cases, illustrating the same general principle applied where the nature of -the work of the various servante or agents is distinct and separable, see Hofnagle v. N. Y. C. & H. R. R. R. Co. (55 N. Y. 608); McCosker v. Long Island Railroad Co. (84 id. 77); Slater v. ■ Jewett (85 id. 61); Brick v. Rochester, If. Y. As P. R. R. Co. (98 id. 211);. Stringham v. Hilton'(111 id. 188); Ford v. Lake Shore ■As Michigan Southern Railway Company (117 id. 638); Arnold v. D. A H. C. Co. (125 id. 15); Corcoran v. Delcma/re, Lacka■wanna A Western Railroad Company (126 id. 673); Soderman v. Kemp (145 id. 427); Mele v. Delaware A Hudson Canal Company (39 N. T. St. Bepr. 153); Hiles v. ,H. Y. C. A H. R. R. R. Co. (14 App. Div. 58); ■ Corcoran v. Hew York, H. H A II. R. R. Co. (46 id. 201); Kmnedy v, Allentown Foundry (49 id. 78); Wan'd v. Haughton (74 id. 68.) The casé of Tendrup v. John Stephenson Co. (51 Hun, 462), -cited by the learned counsel for the respondent, is not in point. In "that case it was held by a divided court that the servant, who did "the mischief which caused the accident occupied the place of the [395] -defendant at the time, and was engaged in the work of the defendant and not in that of á servant. It cannot be successfully asserted .in this case that it was any part of the defendant’s duty to blow the whistle or give any other warning of the approach of the tug. Its •duty was discharged when it employed a competent captain and furnished him with the means and appliances of safe navigation, -and when the specific act or omission which caused the injury is not the personal act or omission of the master himself, the question whether it can be imputed to him as occurring in the discharge of his duty as master is always dependent upon a determination of its ■ nature and character. (Crispin v. Babbitt, 81 N. Y. 516 ; Loughlin v. State of New York, 105 id. 159.) The judgment and order should be reversed. All concurred. Judgment and order reversed and new trial granted, costs to abide the event.