William Miller, Respondent, v. American Sugar Refining Company, Appellant

William Miller, Respondent, v. American Sugar Refining Company, Appellant. Second Department, May 26, 1910. Master and servant — negligence of fellow-servant. A person employed to sweep a dock is a fellow-servant of one employed by the same master in a machine shop on the upper floors of the same structure, and he cannot recover for the negligence of the latter in letting a cog wheel fall from a bridge under which he was working. Appeal by the- defendant, the American Sugar Refining Company, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 30th day of October, 1909. James F. Brady, for the appellant. Walter A. Saxon, for the respondent. [MAJORITY — Hirschberg, P. J.:] Hirschberg, P. J.: Ho question of fact is in dispute. The judgment, recovered by a servant against his employer, is for personal injuries; and it violates the primary principle of the law of negligence that a recovery may not be had against the master for injury occasioned by a fellow-servant. The plaintiff at the time he was hurt was sweeping the defendant’s dock under a bridge connecting two of the. defendant’s buildings. The bridge is fifteen or sixteen feet high. At the time another of the defendant’s employees was wheeling a barrow loaded with iron cogwheels over the bridge from one building to the other, and lie negligently permitted one of the wheels to fall from the barrow, striking the plaintiff, and inflicting the injuries complained of. The learned counsel for the plaintiff seeks to support the judgment by the statement in his brief that the person wheeling the barrow “was in the employ of the defendant in its machine shop in the upper floors within the building, while the plaintiff was performing manual labor as a sweeper on the docks of the defendant, and they were, therefore, not fellow-servants.” They were fellow-servants. (Sherman v. Rochester & Syracuse R. R. Co., 17 N. Y. 153; Wright v. New York Central Railroad Co., 25 id. 562, 565; Crispin v. Babbitt, 81 id. 516; Gabriclson v. Waydell, 135 id. 1; Keenan v. N. Y., L. E. & W. R. R. Co., 145 id. 190.) The judgment should be reversed. Burr, Thomas, Rich and Carr, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.