98 N.Y. 562, Burke v. Witherbee

Citation:98 N.Y. 562
Party Name:RICHARD BURKE, as Administrator, etc., Respondent, v. SILAS H. WITHERBEE et al., Appellants.
Case Date:April 14, 1885
Court:New York Court of Appeals

Page 562

98 N.Y. 562

RICHARD BURKE, as Administrator, etc., Respondent,

v.

SILAS H. WITHERBEE et al., Appellants.

New York Court of Appeal

April 14, 1885

Argued February 6, 1885.

Page 563

COUNSEL

M. D. Grover for appellants. If the hook was a reasonably safe appliance, it was not negligence in defendants not to adopt some other appliance which may have been more safe. (Whart. on Neg., § 213; Stringham v. Stewart, 27 Hun, 562; Charles v. Taylor, 30 Eng. R. [Moak] 346.) That the hook slipped off at the bottom of the track when the bail dropped down as the car stopped is no evidence that such thing could have happened, or should have been anticipated as probable or possible when the car was moving down the track and by its weight drawing the hook and cable and unwinding the drum. (Dongan Case, 56 N.Y. 1; McMahon v. R. R. Co., 50 Supr. Ct. 507.) As to master and servant, under the evidence in this case, the fact of the injury raises no presumption or inference of neglect. ( Sheldon v. H. R. R. R. Co., 29 Barb. 226; Kendall v. Boston, 19 Am. Rep. 446; 118 Mass. 434.) The risk was obvious and incident to Burke's employment, and one which he assumed. ( Gibson v. Erie R. Co., 63 N.Y. 449; De Forrest v. Jewett, 88 Id . 264.)

A. W. Boynton for respondent. The defendants owed to their employes the duty to furnish adequate and proper machinery for the use to which it was to be applied. (Flike Case, 53 N.Y. 553; Laning Case, 49 Id . 532; Cone Case, 81 Id . 208.) The questions whether the hook was an adequate and suitable implement for the use to which it was applied by the defendants, and of their negligence in so using it, and of its being such as experience had shown to be proper, were rightly submitted to the jury, and their finding thereon is conclusive. ( Kain v. Smith, 89 N.Y. 375; Hart v. H. R. B. Co., 80 Id . 622; Smith v. B., etc., M. S. P. Co., 86 Id . 408; Ochsenbein v. Shapley, 85 Id . 224; Durkin v. Sharp, 88 Id . 225; Mehon v. S., etc., R. R. Co., 73 Id . 585; Massoth v. D. & H. C. Co., 64 Id . 529; Plank v. N.Y. C. & H. R. R. R. Co., 60 Id . 607; Gottlieb v. N.Y. L. E. & W. R. R. Co., 29 Id . 637;

Page 564

Ernst v. H. R. R. R. Co., 35 Id . 9.)The fact that the accident and injury happened raised a presumption of negligence on the part of defendants sufficient to carry the case to the jury. ( Lyons v. Rosenthal, 11 Hun, 46; Mullen v. St. John, 57 N.Y. 567.) For one's own negligence there is no difference between liability to a stranger or to a servant. ( Malone v. Hathaway, 64 N.Y. 8.) Even if there was negligence of a co-servant it would not excuse the defendants if the hook was defective. ( Cone v. D. L. & W. R. R. Co., 81 N.Y. 206.) Even if the deceased knew of the defect, it was a question for the jury to decide whether he contributed to the accident. ( McMahon v. P. H. I. O. Co., 24 Hun, 48; Strong v. B. & A. R. R. Co., 58 N.Y. 56; Hawley v. N.Y. C. R. R. Co., 82 Id . 370; 17 Hun, 115.) The deceased had the right to assume the suitable character of the hook for the purpose it was furnished to answer. ( Swords v. Edgar, 59 N.Y. 28; Willey v. Mulledy, 78 Id . 310.)

EARL, J.

This action was brought to recover damages on account of the death of the plaintiff's intestate, which was alleged to have been caused by the negligence of the defendants.

In February, 1883, the defendants owned and worked an iron ore mine in Essex county in this State. The bottom of the mine was reached by a track with wooden rails descending with varying grades a distance of about one thousand feet. The ore was hoisted in a four-wheeled iron cart drawn upon the track by means of a wire cable attached to a drum worked by a stationary engine at the mouth of the mine. The car weighed about a ton, and carried about two tons of ore at a load. In front of the car and firmly attached to it, there was a large iron bail, and to the cable was attached a large iron hook weighing about forty pounds and measuring from its point to the center of its curve six or seven inches; and the car was fastened to the cable by means of this hook placed over the bail. The car when loaded was drawn up by the revolving drum, and then after being unloaded, it returned by its own weight to the bottom of the mine, its motion being controlled by a brake and

Page 565

appliances connected with the drum. There were twenty-five men working in the mine, some of them at the lower end of the track. On the day of the accident, the intestate, with other men, was working there, and while a car was descending, about two hundred feet from the lower end of the track, the hook, in some unaccountable way, became detached from the bail, and the car descended...

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131 practice notes
  • 91 Cal. 48, 14155, Sappenfield v. Main Street & Agricultural Park Railroad Co.
    • United States
    • California Supreme Court of California
    • 5 Septiembre 1891
    ...Mass. 412; 20 Am. Rep. 331; Keith v. Granite Mills , 126 Mass. 90; 30 Am. Rep. 666; Leonard v. Collins , 70 N.Y. 90; Burke v. Witherbee , 98 N.Y. 562; Probst v. Delamater , 100 N.Y. 266; Shearman and Redfield on Negligence, secs. 189, 195, and notes; Cooley on Torts, 2d ed., 650; Columbus v......
  • 105 P. 794 (Idaho 1909), Goure v. Storey
    • United States
    • Idaho Supreme Court of Idaho
    • 3 Diciembre 1909
    ...E. L. Co., 18 Utah 493, 56 P. 90-92; 1 Labatt, Master and Servant, p. 51; Conway v. Hannibal etc., 24 Mo.App. 235; Burke v. Witherbee, 98 N.Y. 562; Armour v. Hahn, 111 U.S. 315, 4 S.Ct. 433, 28 L. ed. 440; Nutt v. So. P. R. Co., 25 Ore. 291, 35 P. 653; Electric Light Co. v. Murphy, 115 Ind.......
  • 14 N.E. 391 (Ind. 1887), 12,576, Wabash, St. Louis And Pacific Railway Company v. Locke
    • United States
    • Indiana Supreme Court of Indiana
    • 30 Noviembre 1887
    ...Co., 56 N.Y. 1; Crocheron v. North Shore, etc., Co., 56 N.Y. 656; Cleveland v. New Jersey, etc., Co., 68 N.Y. 306; Burke v. Witherbee, 98 N.Y. 562; Marsh v. Chickering, 101 N.Y. 396, 5 N.E. 56. [112 Ind. 416] Crafter v. Metropolitan R. W. Co., L. R. 1 C. P. 300, was a suit to recover for an......
  • 21 S.W. 862 (Mo. 1893), Murphy v. Wabash Railroad Company
    • United States
    • Missouri Supreme Court of Missouri
    • 25 Marzo 1893
    ...for appellant. (1) There was no proof of negligence on the part of defendant. Wood's Master & Servant, sec. 329; Burke v. Withrow, 98 N.Y. 565; Railroad v. Lonergan, 118 Ill. 48; Bowen v. Railroad, 95 Mo. 268; Bohn v. Railroad, 106 Mo. 429; Railroad v. Stewart, 13 Lea (Tenn.), 432; Smit......
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131 cases
  • 91 Cal. 48, 14155, Sappenfield v. Main Street & Agricultural Park Railroad Co.
    • United States
    • California Supreme Court of California
    • 5 Septiembre 1891
    ...Mass. 412; 20 Am. Rep. 331; Keith v. Granite Mills , 126 Mass. 90; 30 Am. Rep. 666; Leonard v. Collins , 70 N.Y. 90; Burke v. Witherbee , 98 N.Y. 562; Probst v. Delamater , 100 N.Y. 266; Shearman and Redfield on Negligence, secs. 189, 195, and notes; Cooley on Torts, 2d ed., 650; Columbus v......
  • 105 P. 794 (Idaho 1909), Goure v. Storey
    • United States
    • Idaho Supreme Court of Idaho
    • 3 Diciembre 1909
    ...E. L. Co., 18 Utah 493, 56 P. 90-92; 1 Labatt, Master and Servant, p. 51; Conway v. Hannibal etc., 24 Mo.App. 235; Burke v. Witherbee, 98 N.Y. 562; Armour v. Hahn, 111 U.S. 315, 4 S.Ct. 433, 28 L. ed. 440; Nutt v. So. P. R. Co., 25 Ore. 291, 35 P. 653; Electric Light Co. v. Murphy, 115 Ind.......
  • 14 N.E. 391 (Ind. 1887), 12,576, Wabash, St. Louis And Pacific Railway Company v. Locke
    • United States
    • Indiana Supreme Court of Indiana
    • 30 Noviembre 1887
    ...Co., 56 N.Y. 1; Crocheron v. North Shore, etc., Co., 56 N.Y. 656; Cleveland v. New Jersey, etc., Co., 68 N.Y. 306; Burke v. Witherbee, 98 N.Y. 562; Marsh v. Chickering, 101 N.Y. 396, 5 N.E. 56. [112 Ind. 416] Crafter v. Metropolitan R. W. Co., L. R. 1 C. P. 300, was a suit to recover for an......
  • 21 S.W. 862 (Mo. 1893), Murphy v. Wabash Railroad Company
    • United States
    • Missouri Supreme Court of Missouri
    • 25 Marzo 1893
    ...for appellant. (1) There was no proof of negligence on the part of defendant. Wood's Master & Servant, sec. 329; Burke v. Withrow, 98 N.Y. 565; Railroad v. Lonergan, 118 Ill. 48; Bowen v. Railroad, 95 Mo. 268; Bohn v. Railroad, 106 Mo. 429; Railroad v. Stewart, 13 Lea (Tenn.), 432; Smit......
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