117 N.Y.S. 698 | N.Y. App. Div. | 1909
The plaintiff, a hoy about fifteen years of age, was lawfully employed by the defendant in one' of its small buildings, the plant consisting of various detached structures, on the 27th day of March, 1907. The accident occurred in the finishing shop, a building thirty by fifty feet, and he was employed at the time in nailing small sticks to pieces of fireworks known as “geysers:” These appear to be round pasteboard receptacles about eleven inches long and two inches in diameter, filled under hydraulic pressure with saltpeter, sulphur and charcoal, the constituent elements of gunpowder. These geysers were made and filled in other buildings,
This is all of the testimony relating to the possibility of the accident resulting from a spark produced by the contract of the brass-faced hammer with the round head of a steel nail, and upon this testimony résts the verdict for $10,000 in favor of the plaintiff.. It is to be observed that the testimony as to the usual custom relates only to the tools used, and it is conceded that the hammer furnished
But beyond this, there was no evidence that a brass or copper nail, such as the learned court refers to in a memorandum handed down, could have been used for the purpose of nailing on these sticks of wood. On the contrary, it appears from the evidence that even the steel nails, with sharp points, were sometimes bent in driving, and there was no suggestion that any one else had ever used brass or copper nails for a like purpose. The incidental mention by one of defendant’s witnesses that at- some time the defendant had used a “ covered nail ” something like a staple, does not help out the case. What he meant by a covered nail does not appear, and his further description that it was something like a staple, suggests that it was a nail with a curved staple-like cover. In any event, it
Upon the plaintiff’s own case, therefore, there was no evidence to . go to the jury. When we add to this the fact that the defendant produced three witnesses,, some, if not all of them, disinterested, who had been familiar with the actual work in the defendant’s plant for many years, and who testified that while the same kind of tools and implements had been used there for twenty years or more, and that npne of them had' ever seen a spark produced by driving a steel nail with a brass-faced hammer, and had never heard of such a thing.; that the defendant produced the man who made the hammer used, and that he testified that he had experimented with these hammers striking these nails, or striking steel, and had never been able to produce a spark, and that these witnesses are wholly, uncontradicted, where is there any question of actionable negligence to go to the jury ? Suppose we concede just what the plaintiff claims to be established by the evidence, that the stroke of this brass-faced hammer upon a steel nail produced a spark, and that this spark communicated to the dust upon the table, resulting in the explosion, wquld this make the defendant liable? • The undisputed evidence is that for twenty years these same hammers and these same steel nails had been in use, with no one ever having seen a spark result, or hearing of such a thing. The rule is too well settled to justify the citation of authorities that tools and appliances which have been in use for many years and have been found to serve their purpose with reasonable safety may be retained in use without the imputation of negligence, even though others have found. it advisable to make use of improved appliances. In other words, negligence is not a matter to be. judged after the occurrence; it is always a question of what reasonably prudent men under the same circumstances would or should, in the exercise of reasonable care, have anticipated. Would any reasonably prudent man equipping a place such as that involved in this accident have considered it dangerous to use a brass-faced hammer in driving a steel nail, sharp-pointed and about one inch in length, into a substance which was not explosive except by contact with a spark ? That is the test. It is not whether a spark, after more than twenty years’ experience, did actually develop, but whether it was such a result as reasonably prur
The plaintiff has been sorely injured, but due process of law requires that the defendant shall not be called upon to compensate for his injuries unless it is liable for the result, and the evidence in this case is not.sufficient for that purpose; there is absolutely no evidence of actionable negligence.
The judgment and order appealed from should be reversed.
Bhrr, Bioh and Miller, JJ., concurred; Hirschberg, P. J., dissented.
Judgment and order reversed and new trial granted, costs to abide the event.