McCampbell v. Cunard S.S. Co.

• Citation: 39 N.E. 637,144 N.Y. 552
• Parties: McCAMPBELL v. CUNARD STEAMSHIP CO., Limited.
• Decision Date: 05 February 1895
• Court: New York Court of Appeals

144 N.Y. 552

39 N.E. 637

McCAMPBELL

v.CUNARD STEAMSHIP CO., Limited.

Court of Appeals of New York.

Feb. 5, 1895.

Appeal from supreme court, general term, Second department.

Action by Daniel McCampbell against the Cunard Steamship Company, Limited, to recover for personal injuries. A judgment for plaintiff was affirmed at general term (27 N. Y. Supp. 1112, mem.), and defendant appeals. Reversed.

Frank D. Sturges, for appellant.

George William Hart, for respondent.

HAIGHT, J.

This action was brought to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant company. The plaintiff was an experienced longshoreman. On the 23d day of August, 1883, he entered the employ of the defendant at pier 40, North river, in the city of New York, to assist in the unloading of the company's steamship Gallia. He, with another employé, was directed to take a four-wheeled truck and transfer drums of caustic soda from the deck of the vessel to the dock. The ship arrived the evening before, and had been moored to the dock. Longshoremen in the employ of the company then rigged the gangways. A skid, variously estimated from 20 to 28 feet in length, and 7 feet wide, was placed in position, with one end upon the deck of the vessel and the other upon the dock. It was secured to the side of the ship by means of ring bolts, and upon the dock it was secured to a mouthpiece, so called, tapering to an edge, by lanyards tied through rings, so as to allow the skid and mouthpiece to move backwards and forwards upon the dock, following the movements of the vessel produced by the action of the water. At the time of the accident the tide was high, and the deck of the vessel in consequence was 6 or 7 feet above the dock. The plaintiff and his associate took the truck, drew it up the skid on to the vessel, and placed it in position. Two drums of soda were then raised from the hold of the vessel by means of a winch and placed on the truck. A piece of dunnage wood, tapered at one end, was then placed under the forward drum of soda as a chock to keep them from rolling, and two other pieces of wood were placed through the spokes of the hind wheels to act as brakes in going down to the dock. The plaintiff then started down the skid, drawing the truck after him. When he was about half way down some one cried out, and he glanced back; saw that the chock was slipping off, and the drums rolling forward. He then started to run; but the front wheels of the truck dropped into an opening between the end of the skid and the mouthpiece five or six inches in width, causing a sudden jerk of the handle of the truck, which threw him down, and the drums of soda fell upon his foot, crushing it. Neither party had before noticed that the mouthpiece was not securely tied to the skid. It was in apparent position when the plaintiff and his associate drew the truck up on to the vessel, and, had it been in place when the plaintiff was running down the skid, presumably, he would have escaped injury.

At the conclusion of the evidence the defendant moved for a dismissal of the complaint on the grounds: First. ‘That no negligence on the part of the defendant has been shown.’ Second. ‘That if the plaintiff was injured through the fact that the mouthpiece had become separated from the skid during the operation of the work, either because it was not originally securely fastened, or was not fastened tightly after it had become loosened, then it is the fault of a fellow servant, and not of the company.’ Third. ‘That the risk was open and obvious, and the plaintiff accepted the risk when he entered into the service.’ Fourth. ‘That there was no notice of this defect in the skid and mouthpiece which had been brought home to the defendant,’...