126 N.Y. 568, Creegan v. Marston

Citation:126 N.Y. 568
Party Name:MARGARET E. CREGAN, as Administratrix, etc., Respondent, v. WILLIAM H. MARSTON et al., Appellants.
Case Date:June 02, 1891
Court:New York Court of Appeals
 
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Page 568

126 N.Y. 568

MARGARET E. CREGAN, as Administratrix, etc., Respondent,

v.

WILLIAM H. MARSTON et al., Appellants.

New York Court of Appeal

June 2, 1891

Argued May 1, 1891.

Page 569

COUNSEL

E. Louis Lowe for appellants. The defendants, as masters, discharged their whole duty to the deceased. Their obligation was to furnish suitable materials, safe machinery and competent fellow-workmen. This obligation they performed. They are, therefore, not responsible for negligence, which was the act of a co-servant of the deceased. This is the established rule. (Crispin v. Babbitt, 81 N.Y. 516; Roach v. R. A. I. Works, 14 N.Y. S. R. 583; Neubauer v. N.Y. L. E. & W. R. R. Co., 101 N.Y. 607; Loughlin v. State, 105 id. 159; Webber v. Piper, 109 id. 496.)

Charles J. Patterson for respondent. The duty of renewing the parts of the hoisting apparatus so as to keep it in proper repair for the protection of the employes rested on the defendants and they are liable for injuries resulting from a failure to perform it. They could not delegate this duty to the engineer so as to relieve themselves from liability for its negligent performance. What the engineer did or omitted in respect to this duty stands upon the same footing as if the defendants acted the same way in person. (Fuller v. Jewett, 80 N.Y. 46; Cone v. D., L. & W. R. R. Co., 81 id. 208; Corcoran v. Holbrook, 59 id. 519; Benzing v. Steinway, 101 id. 547; Murray v. Usher, 117 id. 543; Daley v. B. & A. R. R. Co., 147 Mass. 101; Gottlieb v. N.Y. L. E. & W. R. R. Co., 100 N.Y. 462; Bushby v. N.Y. L. E. & W. R. R. Co., 107 id. 374; Durkin v. Sharp, 88 id. 225; Baker v. A. V. R. R. Co., 95 Penn. St. 271; I. C. Co. v. Parker, 100 Ind. 181.)

FINCH, J.

The plaintiff's intestate was killed while loading coal into buckets which were raised from the hold of a vessel by the aid of a derrick. The rope used for that purpose, and which lifted the loads to the control of the gaff, suddenly parted and the falling mass crushed the deceased who died

Page 570

almost immediately from his injuries. There is no question of contributory negligence in the case, and not the least doubt that the defendants did their full duty so far as it consisted in the selection and supply of the rope used.

The controversy is thus narrowed by the facts to the single inquiry whose duty it was to observe and examine the condition of the rope, and change it when so worn that it became unsafe. The lengths of rope used in the derrick were called 'falls.' The ordinary limit of safety in their use was proved to have been from fourteen to twenty days; rarely less than that and sometimes considerably more. Everybody connected with the business knew the consequences of excessive use and the necessity of frequent changes of the falls, but at varying and uncertain periods of time. The fall which was sound and safe in the beginning of a morning's work might become frayed and dangerous before night, and if it...

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