Filbert v. Delaware & H. Canal Co.

• Decision Date: 15 April 1890
• Citation: 23 N.E. 1104,121 N.Y. 207
• Court: New York Court of Appeals Court of Appeals
• Parties: FILBERT v. DELAWARE & H. CANAL CO.

121 N.Y. 207

23 N.E. 1104

FILBERT

v.DELAWARE & H. CANAL CO.¹

Court of Appeals of New York.

April 15, 1890.

Appeal from superior court of New York city, general term.

Action by George Filbert against the Delaware & Hudson Canal Company for personal injuries. Verdict and judgment for plaintiff, from which defendant company appealed to the general term. The judgment was there affirmed, (2 N. Y. Supp. 623,) from which defendant appealed.

RUGER, C. J., and O'BRIEN, J., dissent.

Matthew Hale, for appellant.

Abel E. Blackmar, for respondent.

EARL, J.

On the 15th day of January, 1887, the plaintiff was in the employment of the defendant at Weehawken, in New Jersey, and, while at tempting to uncouple cars, he claims that he fell into a hole between the tracks, and received the injury for which he brought this action. At the place where he was injured there was a pit between the tracks, in which there was a wheel over which a cable was used for drawing cars up an inclined plane. The pit, when in its proper and ordinary condition, was covered with planks laid crosswise between the tracks. It is the claim of the plaintiff, and he gave some evidence tending to prove, that the workmen of the defendant, on the 14th day of January, took up these planks for the purpose of doing some work in the pit, and that they did not replace them, and that the pit remained uncovered until the next day in the morning, when he, in the discharge of his duty, stepped into it, and, in consequence of it, received the injury of which he complains. His claim is that he was injured in consequence of carelessness chargeable to the defendant, his master, while it claims that his injury was due to the carelessness of co-servants, for which he cannot hold it responsible.

We are of opinion that the position of the defendant is well founded. There was no claim upon the trial, and no proof was given tending to show, that the pit, when covered, was in any respect an improper structure, or in an unsafe condition, or that the plaintiff's co-servants were unskillful. The sole claim on his part is that the carelessness of the defendant consisted in leaving the pit uncovered. It appears that, in the operations of the railroad at that point, it was frequently necessary to remove the planks covering the pit, temporarily, for the purpose of making repairs therein, and that the employes engaged in and about that work were repeatedly instructed to cover the pit when the repairs were finished. There is no allegation, and there was no proof, that the employes did not have suitable material to cover the pit. The sole allegation is that they did not cover it; and it was therefore their negligence, and not the negligence of the company, that it was uncovered at the time of the accident. The defendant was bound to furnish a reasonably safe place for its employes to work, and to furnish suitable implements and machinery for them. Here that duty was fully discharged.The pit was not dangerous when covered with the planks, and the danger was solely due to the fact that the plaintiff's co-servants left it uncovered. Within the rules applicable to such a case, the plaintiff and the others there engaged in the service of the defendant, including the foreman, were co-servants, engaged in a common employment; and the common master cannot be held responsible for an injury caused to any one of them through the carelessness of any of the others. The employes were not engaged upon an imperfect road or...