Devine v. Hayward

Chester, J.: The complaint having been dismissed, the plaintiff is entitled to the most favorable inferences fairly deducible from the testimony. [708] There was some conflict in the evidence as to just what caused the accident; whether it was the act of Hilt in prying upon the outside of the plate, or of Devine in striking upon the crosspiece of the skid on the inside, or whether it was caused by the two acts combined. There was sufficient to justify the inference that the plate fell as a result of the combination of the two acts. The proof is undisputed that the superintendent, Mason, was not at the job when the accident happened, and there is some conflict in the evidence as to, whether or not Brennan, the foreman, was there at that time. Brennan himself says that he was on the job about fifty or sixty feet distant at the time. The witnesses for the plaintiff testified that- he was not there, but came soon after the accident happened. There is also a conflict in the testimony as to whether Hilt was acting as superintendent in the absence of Mason and of Brennan. The defendant insists that Hilt was employed at the same time Devine was to do the same kind of work, and that he had no authority over the men working with him, .but because of his age and previous experience he was generally accepted by the men as their leader. Under the defendant’s theory he was what they called a “ pusher ” of one .of the gangs, and not intrusted with superintendence. Under the plaintiff’s evidence it was Hilt who was “ boss ” in the absence of Brennan, and who gave all the directions to the men. It tended to show that he had full power in such absence to decide what should be done when the plate fell'from the skid, and to direct the men as he saw fit what methods should be employed in replacing it. He received four dollars a days and Devine received from two dollars to two dollars and twenty-five cents a day. Even Brennan testified for the defendant that the men had to mind 'Hilt and him, and if they did not, they had to get off the job, and that when he was not there in Hilt’s gang the men did what Hilt told them to do. Upon the foregoing evidence it appears to us that the case was for the jury in the first instance, and that the court could not say as a matter of law that the accident was caused by the act of Hilt, a fellow-servant of the deceased, while ■ engaged in a detail-of the work. The accident did not happen when the skid and plate were being rolled along in the usual manner, but the plate had become partially displaced from the skid so that it could not be moved further [709] until it had been replaced in position. It was an unwieldy piece of iron weighing three tons, and difficult to handle. The jury could have .found that it required an act of superintendence to decide upon and direct the method of getting the plate back upon the skid, so that the rolling of it along into its place could be again proceeded with, and that the act of Hilt in directing Devine to strike upon the crossbar in an effort to consummate the method the former had decided upon for doing that work was an act in the exercise of superintendence done by the authority of the defendant in the absence of Brennan, if They found that he was absent. It was also for the jury to say whether such act was a careless or negligent one under the circumstances. If it should appear upon the trial that the accident was caused by the concurrence of a negligent act of the defendant and that of a fellow-servant the defendant would, under the authorities, be liable. (Stringham v. Stewart, 100 N. Y. 526, and cases there cited.) We think also the question whether the decedent was guilty of contributory negligence was for the jury. ■■ The judgment should'be reversed and a new trial granted, with costs to the appellant to abide the event. * All concurred. Judgment reversed and new trial granted, with costs to appellant to abide event.