Esposito v. Rock Plaster Co.

Bdbpv, J. : Plaintiff’s right of action depends upon the common-law liability of master to servant.- He was in the employ of the firm of M. P. Smith & Sons. Their business was. that of stevedores. On the 30th of November, 1906, they were engaged in d-ischargirig a cargo' for defendant from, a steamship lying at "its dock at the foot of One Hundred and Fiftieth street in the borough of the Bronx. Part of the appliances for unloading the vessel consisted of a steam winch, derrick and fall, which belonged to defendant. While at work, plaintiff was struck by an iron bucket attached to the fall, as th e result of which he sustained serious injuries. There was' evidence from which a jury could have found that this Was due to the careless and negligent conduct of the engineer in charge of the winch.. At the close of plaintiff’s case a motion to nonsuit was granted upon the ground that the negligence of tliewinchman was that of a fellow-servant of plaintiff. The winchman was in the general employ of defendant, was hired by it, paid by it, and so far as. the evidence discloses, it alone had the power to discharge him. Under, the contract between defendant and the firm of M. P. Smith & Sons, the latter were to furnish the necessary appliances' and labor to accomplish the unloading of the vessel, except that defendant was to furnish the gear and hoisting apparatus, the steam power and the engineer or winch man to operate such machinery. It is true that Winfield L. Smith, one of said firm, when called as a witness for plaintiff, testified that “the control and the supervision and the running of the engine was done under directions and orders of M. P. Smith & Sons.” This testimony was elicited under .the skillful ■ cross-examination of shrewd and able counsel, and it is at least ques [753] tioilable whether such testimony was not the conclusion of the witness rather than his “ conscious experience ” as to the facts. (Moebus v. Herrmann, 108 N. Y. 349, 354.) His testimony as to the acts of the parties established nothing more than that the employees of the said firm did indicate by signals to the engineer when it was necessary to hoist the load and when to permit it to descend, so that he might operate the machinery to accomplish this result. I doubt whether his testimony could be possibly construed to mean more than that. His testimony was that this supervision included “Instructing him to hoist the tubs out-of the hold and lower them away.” He testified to no other act of supervision, neither did any other witness, nor is there any evidence as to acts done from which ■ any other supervision may. be implied. The man who held the guy rope, and who Avas the only one shown to have given any directions to the engineer, testified, Avhen asked as to his. duties in connection Avith him, that he “ just told the winclnnau to go ahead, or to stop.” This alone Avould hot be sufficient to transfer the responsibility for the acts of the latter from defendant, his general employer, to the firm of stevedores so that plaintiff Avas barred from a recovery upon the ground that he .became for the time being his fellow-servant. The mere1 giving of this signal Avas not supervision and control of the engineer, but simply the conveying to. him of information to enable him to do the work. (Sanford v. Standard Oil Co., 118 N. Y. 571; Johnson v. Netherlands American Steam Navigation Co., 132 id. 576; Standard Oil Co. v. Anderson, 212 U. S. 215; De Maio v. Standard Oil Co., 68 App. Div. 167 ; Lauro v. Standard Oil Co., 74 id. 4; Henry v. Stanley Hod Elevator Co., 129 id. 613.) ■ I think that upon the evidence in this case the court should not have decided as matter of law that the engineer had ceased to be the employee of defendant, and had become for the time being the employee of M. P. Smith & .Sons, but should have left it to the jury under proper instructions to determine as a question of fact. The judgmeht appealed from should be reversed and a new trial granted, costs to abide the event. Thomas and Carr, JJ., concurred ; Woodward, J., read for affirmance, with Avhom Rich, J., concurred.