Opinion
March 2, 1906.
Franks F. Davis [ Charles J. Belfer and Francis A. McCloskey with him on the brief], for the appellant.
Sidney Lowenthal [ Ira Leo Bamberger with him on the brief], for the respondent.
The action is by servant against master for negligent employ of a fellow-servant whose accidental act injured the plaintiff. Plaintiff when at work in defendant's distillery leaned over a barrel to empty it. At that time the other servant, in attempting to start the bung out of another barrel, missed his aim and struck the plaintiff with the wooden bungstarter. The evidence of specific acts relied upon to establish liability of the master under the rule of Park v. N.Y.C. H.R.R.R. Co. ( 155 N.Y. 215) is found wholly in the testimony of the plaintiff. First, he testifies that two months before, after this fellow-servant had lined up some empty barrels on the floor, one rolled down into the elevator shaft because the barrels were not wedged, and because the floor, instead of being level as intended by the construction, was very "bad and broke up" and slanting. Second, at another time when this servant was filling a keg standing on the floor it rolled downstairs. Third, at another time when the servant was carrying bottles by their necks, they dropped on the floor. Fourth, the fellow-servant had cut and bruised his own fingers. Two of these accidents might be traced to the faulty construction of the premises, while there is no proof that this fellow-servant knew or should have known of it at the times in question. The third is not very serious at most, and the fourth is trivial. But in any event there was no sufficient proof to fasten liability on the master. As to the first accident the witness testifies that there was no one on the floor at the time so far as he knew, and that he did not know whether "they knew of it or not." As to the second he testifies that Mr. Bishop, who I infer was some one in authority, was there "somewhere on the floor" immediately before or after. As to the fourth accident there is no proof that it was ever known to the defendant. As to the third accident plaintiff was asked whether anything was said on that occasion by any of the officers of the defendant with reference to the manner in which he ( i.e., the alleged incompetent) did that. This was objected to unless the officer was specified. The court excluded it, but no exception was taken. The next question was "or by any individual." This was excluded under exception. The question was too broad. But even assuming that it had been answered that the defendant then and there found fault with the failure of the attempt to carry too many glass bottles, the bit of evidence would not have been sufficient. ( Baulec v. New York Harlem R.R. Co., 59 N.Y. 356, 365.) Finally, the plaintiff testifies as to whether Mr. Reiners or Mr. Bishop were present on any of these occasions, that "they were somewhere on the floor" (which was 75 feet wide by 100 or 125 feet long), but where he cannot state. The evidence is too meagre to charge the defendant with knowledge or to hold it liable for ignorance, under the rule of Park's Case ( supra), Baulec's Case ( supra), and of Cameron v. N.Y.C. H.R.R.R. Co. ( 145 N.Y. 400).
The judgment must be affirmed, with costs.
GAYNOR, RICH and MILLER, JJ., concurred; HOOKER, J., dissented.
Judgment and order affirmed, with costs.