#### William H. R. Sanford, Resp’t, *v.*The Standard Oil Company of New York, App’lt.

*(Court of Appeals, Second Division,*

*Filed February 25, 1890.)*

Master and servant—Negligence—Servants op different masters.

Plaintiff was working at a wharf in Weehawken, in loading the ship *856Austria with barrels oí petroleum. His immediate employers were a firm of stevedores, Dick and Churchill. Under an arrangement between that firm and the defendant, the latter furnished the steam power and certain mechanical appliances, together with persons to manage the same and aid in loading the vessel, and the stevedores paid to the company a certain compensation per barrel for the total quantity of oil ladened into the vessel. Plaintiff’s duty was to stand at the gangway, and to signal, by a whistle, to Gebhard, the man who had charge of the hoisting, etc. Gebhard by raising a barrel without a signal, after saying that he would raise no more before dinner, knocked plaintiff into the hold, and injured him. *Held,*that the plaintiff was the servant of the stevedores, and that the man who directed the hoisting and lowering, was the servant of the defendant, and that defendant was liable for the neglect of its servant.

This action was brought by the plaintiff to recover damages for a personal injury alleged to have been received by him through th,e negligence of one Gebhard, a servant of the defendant. The plaintiff was an employee of a firm ■ of stevedores, Dick & Churchill, who had engaged with the master of the ship “Austria” to load it with barrels of petroleum which were in the store-house and upon the dock of the defendant at Weehawken, in the state of New Jersey. Messrs. Dick & Churchill made a contract to load this vessel with the master of the vessel. The defendant possessing and owning the dock and store-house in which the barrels of petroleum were stored, and from which they were to be loaded, also owned a steam engine and apparatus which was employed by the stevedores contracting to load the vessel, and the defendant contracted with Dick & Churchill to furnish the power and necessary men to run and manage the power to load the vessel for three-fourths of a cent per barrel, for the number of barrels put upon this vessel. The man Gebhard had been in defendant’s employment for several years, while the plaintiff had been in the employment of the stevedores for several years. Gebhard was generally employed in other service of the defendant, but owing to a strike which deprived the defendant of the servant who usually superintended the hoisting and lowering, they assigned that duty, on this occasion, to Gebhard.

The facts are very clearly.and briefly stated in the charge of the learned judge who tried the case, as follows: “ It appears that on the second day of June, 1886, the plaintiff in this suit was working at a wharf in Weehawken, in the state of New Jersey, in loading a ship called the Austria with barrels of petroleum. His immediate employers were a firm of stevedores, Dick & Churchill. Under an arrangement between that firm and the Standard Oil Company, the defendant here, the latter furnished' the steam power and certain mechanical appliances, together with persons to manage the same and aid in loading the vessel, and the stevedores paid to the company a certain compensation per barrel for the total quantity of oil ladened into the vessel.”

The stevedores furnished men to stow the cargo, and another man, who was the plaintiff in this case, to stand at the gangway and to signal (by the use of a whistle) the man who had charge of the hoisting and lowering part of the operation of loading the vessel, and the defendant furnished the man who managed the machinery ■to hoist the petroleum. The theory of the complaint is that the *857man Grebhard, who managed the hoisting and lowering of the. barrels from the dock up the sides of the vessel upon a skid and so over the hold into which it was to be loaded, raised a barrel from the dock without any signal, and after he had said to the gangman that it was dinner time, and he would raise no more before dinner, and while plaintiff, the gangman, supposing that no more was to be done until after dinner, in accordance with the statement made by said Gebhard, and while his attention was directed to calling the men from the hold to dinner, which swung against the plaintiff and knocked him into the hold of the vessel, by which he received the injuries complained of. It is to recover for these injuries that this action is brought against the defendant, upon the theory that. Gebhard was the servant of the defendant, while the man standing at the gangway, the plaintiff, was the agent of the stevedores.

After the evidence had been taken, the court instructed the jury that this man at the drum was the servant of the defendant, and that for any negligence which he committed in hoisting or lowering the barrels, in operating the drum, the defendant corporation is responsible as his master.

Of course there was evidence given upon, the question of who was guilty of this negligence, whether the man engaged in hoisting or lowering, or the man at the gang-way who gave the signal to him when to lower and when to hoist That question was fairly submitted by the court to the jury, and the jury founfl the negligence which caused the accident was upon the part of the man who had charge of the hoisting and lowering of the barrels into the hold of the vessel.

The only question of law in the case, and the only one discussed and conceded upon the trial to be the only one in the case, was whether the man in charge of the hoisting and lowering, and the man at the gang-way and directing the man when to hoist and lower, were co-servants, or whether they were servants of different masters.

*John Brooks*Leavitt, for app’lt; *Abel JL. Blackmar,*for resp’t.

Potter, J.

I entirely agree with the charge of the trial court that they were servants of different masters; that the man who gave the signal was the servant of the stevedores, Dick & Churchill, and that the man who directed the hoisting and lowering was the servant of the defendant, and that, therefore, upon well settled principles of law, the defendant is liable for the neglect of Gebhard, the man at the drum.

The authorities cited upon the brief of counsel warrant the instruction of the judge to the jury in that regard, and especially the case cited by respondent’s counsel, and to be found in 44 Hun, 304; 7 N. Y. State Rep., 627 *(Sullivan*v. *Tioga Railroad Co.),*which I consider a clear and able exposition of the law which is to govern the decision of cases of this character. The case was affirmed by the court of appeals in 112 N. Y., 643: 21 N. Y. State Rep., 827.

*858The judgment should be affirmed, with costs.

All concur.