139 N.Y.S. 805 | N.Y. App. Div. | 1913
We agree, with the opinion of Mr. Justice Benedict at Trial Term (76 Misc. Rep. 599), that under the circumstances here disclosed the chain tongs which broke may be deemed a part of defendant’s plant. (Lipstein v. Provident Loan Society, 154 App. Div. 732, decided herewith.) But under the circumstances here disclosed the liability, if any, of defendant for a defect in the condition of the plant arises but of its negligence in not discovering or remedying such defect. (Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 200, as amd. by Laws of 1910, chap. 352.) While the evidence in this case discloses that the chain tongs were somewhat worn, and the result proved that they were insufficient for the use to which they were put, we think that the evidence wholly fails to establish that the defect was of such a character that defendant could be charged with negligence in not discovering or remedying it. A thing may be worn, but yet not sufficiently worn to charge an employer with negligence hr permitting the same to be used. The plaintiff in this case, with his eighteen years of experience, was fully as competent as any other person to determine whether the worn character of the tongs was such as to make it unsafe to use the same. But his own evidence upon that point is, that although he noticed the worn link, which subsequently broke, he still believed that the tongs were entirely sufficient to do the work for which he employed them. Why would not the master be justified in supposing the same thing ?
We also think that there was error in the court’s ruling upon
Jenks, P. J.., and Woodward, J., concurred; Hirschberg, J., voted to affirm upon the opinion of Mr. Justice Benedict at' Trial Term, with whom Rich, J., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.