6 N.Y.S. 605 | N.Y. Sup. Ct. | 1889
There is no doubt of the general principle that the master owes the servant the duty of furnishing suitable machinery; but this is not an absolute duty, nor is the master an insurer to the servant of the safety of the machinery. It is a duty which is satisfied by the exercise of reasonable care and prudence. “ Where injury to an employé results from a defect in the implements furnished, knowledge of the defect must be brought home to the employer, or proof given that he omitted the exercise of proper care to discover it.” Devlin v. Smith, 89 N. Y. 470; Probst v. Delamater, 100 N. Y. at 272, 3 N. E. Rep. 184; Arnold v. Canal Co., 6 N. Y. St. Rep. 368; Cahill v. Hilton, 106 N. Y. 512, 13 N. E. Rep. 339. So this same rule is expressed in Fuller v. Jewett, 80 N. Y. at 53, where it is said that the duty of the master is relative, not absolute. He is only bound to exercise due care to that end. In the case of Jones v. Railroad Co., 22 Hun, 284, where the deceased was killed by a fall from a broken rung on a car, the doctrine is again stated. And it may be noticed that when that case was again before the court, in 28 Hun, 364, (affirmed 92 N. Y. 628,) the condition of the rung at a time previous to the accident was shown, that the jury might infer therefrom the negligence of the defendant.
We have so far considered this case on the supposition that the brace which held the brake-shaft was loose, or perhaps off, when plaintiff took hold of the wheel, and that that circumstance caused- his fall. But even this is not satisfactorily proved. The plaintiff was not trying to set the brake. Hence, there would be no strain, or little strain, on the wheel from the pressure of the brake. He says he pulled on the wheel, and it caught a little. There is no evidence that looseness of the brace would have made the wheel catch. Then he pulled a little harder, and gave a jerk, turned it half way around, and it flew back, and he got overbalanced, and the brake-shaft went one side. Except the fact that the brake-shaft went to one side, there is nothing that we discover in the circumstances which would be caused by the looseness of the brace. The plaintiff says that he does not know whether he put the dog into the ratchet, and that if he did not the wheel would naturally go back when his hand slipped. The plaintiff does not know how far the brake-shaft went to one side. How, as that brake-shaft was fastened at the stirrup, under the car, and passed through the foot-board, about three feet below the top of the car, the wheel at the top of the brake-shaft could not move to one side much more than the excess of the size of the hole in the foot-board over the size of the brake-shaft. There is no proof how large the hole in the foot-board was. A witness says that it let the brake “wobble.” But this hole was not intended to hold the brake-shaft. That was done by the brace. So that the fact that the brake-shaft would “wobble” in that hole is no evidence of negligence. The plaintiff says that the wheel flew back and threw him to the south. And it may be that his claim is that just at that time the brace became loose, and thus the wheel flew back and the brake-shaft went to the side, and his hand slipped, and he fell. But even that would not account for the catching of the brake-shaft which made it necessary for him to give the jerk. That seems to have had something to do with the unfortunate result. If, however, the brace was off and lying on the foot-board when he mounted upon it, then it would seem to have been difficult for him not to see the defect.
We have thus far examined this case on the assumption that the jury found that plaintiff did not fall from car 3,913. We have now to consider the correctness of that finding. It is not disputed that the car from which plaintiff fell was the second car from the engine, as the train came into the freight-yard from Schenectady, and that the first was a coal-car. In distributing, the order was reversed so that the coal-car was last. Chamberlain, a brakeman, had mounted the coal-car and saw plaintiff fall. Half an hour afterwards he pointed out the car to Palmer, a brakeman. The next day, about 6 R. m., Palmer testifies that he identified the car then standing on the Kelly track,— unloaded, having contained feed,—and saw the brace was loose on the ratchet. He identified the car by the number, which he does not now remember, and by the>words “Broken Track Transfer,” which he says were on this car, and others. Lawrence, then a yard-man, came up about the time of the accident, and was told which the car was from which plaintiff fell. It was next to the
Landon, J. I concur, and add that the employé.who makes inspection incurs the risks of the employment, to the extent of the danger resulting from the defects which his inspection is intended to detect and provide against.
Ingalls, J., concurs.