12 Misc. 336 | The Superior Court of the City of New York and Buffalo | 1895
At the time of the injury complained of, the plaintiff was in the employment of the defendant, who was engaged in constructing the iron work of a building then in course of erection, The plaintiff was one of a gang of four men, who were in charge of a foreman, all of whom were also in the employment of the defendant. In order to perform the work upon which they were engaged, the use of a derrick was necessary. Such a derrick was supplied by the defendant. There is no evidence in the case to show that it was not a safe and proper appliance for the purposes for which it was intended to be used, or that there was any defect in its equipment. It appears from the proofs that it had already been in use during the time that the plaintiff was employed upon the building in question—that is, about a week before the accident—for the performance of the same land of work as that for which it was being used at the time of the injury. It consisted of two stems of wood, united by a head block at the top; and a beam of wood at the bottom, with proper bracings of iron. The stems were set in mortises in the base block, but were not provided with tenons, so that the stems could be lifted out of the block. In order to employ the derrick, it was necessary that it should be set up at the place where its services were required, and wire stay ropes were fitted tó* it, to be fastened to the beams of the building in such a way as to give it the necessary rigidity to prevent it from falling when in use. On the morning of the day of the accident, the derrick was moved by the plaintiff, and those with whom he was working, to a portion of
Upon the trial of the action, there was very( little evidence to explain the cause of the accident. None of the stay ropes had given wray or become loosened, nor had any portion of the derrick broken. It did appear that one of the stems of the derrick had come out of the mortise in which it had been placed, but there was absolutely no evidence in the case tending to show that a derrick thus put together was not safe or proper to be used, or.that this was a defect Certainly, if derricks so adjusted were in common use, and in that condition were reasonably safe, the defendant was under no obligation to the plaintiff to provide additional means of security. “A master is not bound to furnish the best known or conceivable appliances; he is required to furnish such as are reasonably safe (Burke v. Witherbee, 98 N. Y. 562; Probst v. Delamater, 100 N. Y. 266, 3 N. E. 184), and to see that there is no defect in those which his employés must use (Gottlieb v. Railroad Co., 100 N. Y. 462, 3 N. E. 344). The test is not whether the master omitted to do something he could have done, but whether, in selecting tools and machinery for their use, he was reasonably prudent and careful; not whether better machinery might not have been obtained, but whether that provided was in fact adequate and proper for the use to which it was to be applied. These rules are not violated when such machinery becomes insufficient, only when negligently or carelessly used.” Stringham v. Hilton, 111 N. Y. 188, 18 N. E. 870.
The burden rested upon the plaintiff of showing that the defendant had not exercised such care. He, has, however, failed to make any proof from which such lack of care may be inferred; and we must therefore assume that the derrick in question was a reasonably safe and suitable appliance; that it was not affected with any defect in any of its parts, or in the assembling of its parts; and that the accident was the result, not of any defect in the derrick as a machine, but of some error committed in setting it up for use by the gang or the foreman of the gang of men by whom it was being employed in furtherance of their work. The plaintiff offered proof on trial for the purpose of showing that the defendant had not shown reasonable care in ihe selection of the foreman, with the object of supporting a claim that such foreman was not a fit or suitable person to have charge of the erection and proper securing of the derrick; that the derrick was not properly set up and secured; that the defendant had consequently failed in the performance of one of the duties which
The case, then, presents but one single point for our consideration: Did the defendant perform its duty to the plaintiff in supplying the machine with all the appliances necessary and desirable for the purpose of setting it up and properly securing it at the place where it might be required for use, or did its duty go further, and demand that, wherever it might be set up, it was still incumbent upon the defendant to see to it that proper care was exercised in performing such work? The contention of the counsel for the plaintiff is that the derrick was not a machine or tool, in the sense in which those words are understood when dealing with the question of an employer’s liability, until it has been actually set up and is ready for use; and that, consequently, the defendant was bound to provide a derrick properly set up and secured at each place where it might be required, and for its failure so to do at the place in question has made itself liable to the plaintiff for the resultant injury. We are unable to go to any such length. The evidence shows that the derrick was not intended to be a permanent structure, but was to be transferred from place to place, wherever the occasion of the work required its presence. The work was being done in sections, and, as each section was completed, it became the duty of the men to shift it, and set it up elsewhere fop use upon another section. Under such conditions of use, the defendant must be considered as having discharged its duty to its workmen when it provided the machine in a proper condition to be set up for use, and furnished with all the appliances in customary and ordinary use for the purpose of giving it stability. It was a tool essential to the work, constantly requiring change of position, as the exigencies of the work in its progress demanded. It was something complete in itself, but demanding adjustment and readjustment in its relation to the purposes for which from time to time it was required. It, therefore, naturally became a part of the duty of those engaged upon the work, and a part of the business for which they were employed, to use it like any other tool; and the shifting of it from place to place, and setting it up, became a necessary adaptation of it to the work upon which they were engaged, and was thus a use of it which fell within the line
“If the defendant furnished suitable appliances for securing the mouthpiece to the skid, and the injury occurred because the mouthpiece was not properly secured, the plaintiff cannot recover.”
And again:
“If the defendant’s employés who rigged the skid and mouthpiece were ' fellow servants of the plaintiff, and if the injury was occasioned by their negligence alone, the plaintiff cannot recover.”
“The most that can be claimed by the plaintiff is that the mouthpiece was-improperly tied to the skid. There is no other complaint made with reference to the skid, the mouthpiece, or the appliance furnished for fastening them together. They were of the kind and character in common use. They were open, visible appliances, of-simple construction, the use of which was well, known and understood by the plaintiff. They were tied togethér by the employes of the defendant, who were shown to be experienced longshoremen; and if, as claimed, this work was improperly done, it was the negligent act of the coemployés of the plaintiff.”
Here, as in the case at bar, the defendant had furnished a machine or appliance, requiring adaptation to the work in hand, and which, if properly adjusted, was suitable for the purpose for which it was intended. The work of so adjusting it was an incident to-its use, and not an element of its construction, and was properly left by the master to those engaged in using it. Cases of this character are all on the border line.
As was well said in Webber v. Piper, 109 N. Y., at page 499, 17 N. E. 216:
“The line of division between the duty of the master to furnish and maintain safe and adequate machinery and that of the operative to manage and handle it with prudence and care, is difficult to define by any general description, but is quite obvious when each case, as it arises, comes under consideration.”
We are of the opinion that in the case at bar the defendant had discharged the duty it owed to the plaintiff, and that, if there was-negligence in respect to the injury he suffered, it was that of a fellow servant, for which the defendant was not responsible.
Judgment affirmed, with costs.