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,


SILAS H. WITHERBEE et al., Appellants.

New York Court of Appeal

April 14, 1885

         Argued February 6, 1885.

Page 563


         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...

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