87 A.D. 68 | N.Y. App. Div. | 1903
The plaintiff was injured while working in the defendant’s employ in its power house on East Eightieth street in the borough of Manhattan. The complaint alleges that the injury was occasioned by the bursting of an old and unsafe belt which was used in operating one of the dynamos, and the extent of the injury inflicted is limited to the statement that when the belt broke “ a piece thereof flew off and struck plaintiff in the right eye, destroying the sight thereof.”
The plaintiff testified that a triangular piece of the broken belt was lying upon the floor immediately after the accident. He returned to work for the defendant a few weeks thereafter, and claims to have then found in the shaft room a helt which he identified as the one which had broken and which exhibited a corresponding triangular fracture. A piece of this* belt showing the fracture was introduced by him in evidence, and some proof was given tending to show that it was rotten and unsafe, and that its defective condition was discoverable upon reasonable inspection. There was no proof as to the length of time the belt had been in use. There was proof of daily inspection, and no proof that it had not been properly performed except what may be inferred from the accident itself. The case was submitted to the jury upon the theory that the duty of inspection devolved upon the defendant as the plaintiff’s master, and that while that duty might from necessity and for
The authorities are not harmonious. The general rule is undoubted that the absolute duties of the master cannot be so delegated as to relieve him from the consequences of a failure to discharge them. Such duties can only be discharged by performance. One of them enjoins the exercise of reasonable care to keep the appliances furnished to employees in good and suitable condition. In Bailey v. Rome, W. & O. R. R. Co. (139 N. Y. 302) it was held that the adoption of a rule requiring inspection does not relieve a company from liability, but that it is liable for injuries to an employee caused by a negligent omission of subordinates, who are required by the company’s rules to make due inspection, to perform that- duty. (See, also, Corcoran v. Holbrook, 59 N. Y, 517.) In Byrne v. Eastmans Co. of N. Y. (163 N. Y. 461, 465) the court said, “ reasonable care involves proper inspection, and negligence in respect of it, in such cases as this, is the negligence of the master, and none the less so when the inspection is committed to a servant. (Durkin v. Sharp, 88 N. Y. 225; Bailey v. Borne, W. & O. R. R. Co., 139 ib. 302; Hankins v. N. Y., L. Erie & W. R. R. Co., 142 ib. 416; Fuller v. Jewett, 80 ib. 46.) ” This is cited with apparent approval in McGuire v. Bell Telephone Co. (167 N. Y. 208, 212), with the qualification that “ the application of this rulmay depend on the nature of the work and the manner of its conduct.”
It was, however, held in Malone v. Hathaway (64 N. Y. 5) that the defendant was not liable for the negligence of a carpenter who was employed by him to'examine and keep a building in repair, but who negligently omitted to discharge that duty. See to the same" general effect Cregan v. Marston (126 N. Y. 568), and Schulz v. Rohe (149 id. 132). These cases may be distinguished from those previously cited in the facts upon which they rest, and the apparent want of harmony will probably be found to result from the difficulty of applying general principles to different and conflicting conditions.In none of the cases cited has it been held that where inspection of so common an appliance as a leather belt has been provided for by the master, and the duty of inspection is actually discharged by the
As there must be a new trial in this case, and the facts niay then be more clearly and precisely developed, and as much depends upon the facts with respect to the inspection and the general conduct of the work, a decision of this question need not now be made. There must be a new trial, because incompetent evidence was received for the purpose, of establishing an inadequate or careless inspection by the employee of .the defendant to whom the duty of inspection Was assigned. A witness on plaintiff’s behalf was asked, under proper objection and exception, the question in reference to the triangular piece of belt referred to, “ referring to Ex. No. 1, would you say that the condition of that belt was such that a reasonable inspection of it by a competent person ought to have disclosed the fact that the belt was unsafe ? ” The witness answered. in the affirmative.' This evidence was of the same character as that which the Court of Appeals condemned in Dougherty v. Millihen (163 N. Y. 527.) It not only tended to prove that the condition of the belt could have been discovered, in the opinion of the witness, by reasonable inspection, but also that, in the opinion of the witness, the belt was unsafe. It was within the' power of the witness to give the descriptive facts from which the jury could draw the proper conclusions, but he was not competent to give such conclusions as expert evidence. If the belt was rotten, its condition, if discoverable^ would necessarily be manifested in some way, and the manifestations of that condition could, therefore, be readily described by the witness so that the jury could determine the degree of care which would be required in their detection. On a disclosure of the facts it needed no expert knowledge to determine what would be a reasonable inspection; what such inspection would disclose, or if it disclosed the fact that the belt was worn out and rotten, that it was an unsafe appliance to use in the operation of machinery. In other words, while the faqts
.It was also error to allow proof- of the injury, actual andi apprehended, to the sight of the plaintiff’s left eye. The damages recoverable in this class of cases are for the usual and natural consequences of the accident and for such special injuries as are alleged in the complaint or which immediately and necessarily result from those so alleged. (Sealey v. Metropolitan Street R. Co., 78 App. Div. 530, and cases cited.) There was no evidence in this case that the injury to the left eye was the immediate and necessary result of the injury.to the right eye, and it could not accordingly be made the basis of a claim for damage without a special averment.
. The judgment and order should be reversed..
Bartlett, Woodward, Jenks and Hooker, JJ., concurred.
v
Judgment and order reversed and new trial granted, costs to' abide the event.