127 N.Y.S. 44 | N.Y. App. Div. | 1911
The plaintiff has recovered judgment' against liis former master, the defendant, for the sum of $11,142.89, for personal injuries resulting from the alleged negligence of .the master. The action was brought under the common-law rules of liability. The negligence asserted consisted of an alleged failure to furnish the plaintiff with reasonably safe appliances in doing the work in which he was injured. The plaintiff was a young man of no particular experience, and his work for the defendant was practically that of an ■ordinary laborer. ■ Before entering upon this employment he had no acquaintance with its methods, and four days after the beginning of his service the accident occurred. The defendant was engaged in the business of gathering up and carrying away ashes and similar refuse material which accumulated from time to time in the borough of Brooklyn.- As a part of its agencies it maintained a shed or depot fronting on a public street. " Into this shed it ran cars laden with the refuse material. On the floor, space of the shed it had constructed sixteen deep pockets separated from each other by lumber construction. These pockets were used to contain large steel buckets, of square construction, which, when either full or empty as the case may be, were lifted out'of or deposited in the pockets by means of an overhead traveling crane, which was operated by an electric motor. By means of this crane a full or empty bucket was moved from one pocket to another as the needs of the work required. The buckets when full' of ashes weighed from six to seven tons. On each side of the buckets, about four feet below the top, was a projecting lug. To move the bucket a hook was attached to each lug. These hooks were in turn attached to a cable which fitted into a large hook attached to a pulley. Through this pulley passed a steel cable. One end of the cable was anchored permanently to a revolving drum, the other then passed through a clamp which affixed the cable to another part of the crane itself, and the free end of -the cable emerging from the clamp was doubled back against the portion of the cable below the point of entry to the clamp, and both were tied together with two steel clips. • The entire cable, thus constructed, formed a. loop, in the bed of which the pulley rested as the buckets were being raised or lowered. The accident happened while a full bucket was being
The plaintiff’s theory of the accident is that all these bolts and nuts had become loose-and the defect so arising could have been discovered by the master through reasonable inspection of the appliance. So far as the proof goes, the master maintained a system of inspection, and the very appliance in question was shown to have been inspected two days before the accident without any defect having been discovered. It is quite true that had everything connected with the appliance been in good order at the tune of the occurrence, the accident would not have happened, and this was so testified at the trial. The difficulty is that the defendant’s liability does not rest upon the simple fact that something was out of order at the moment, but requires proof, either of actual notice or off the existence of a condition, whicli ivonld result in notice if there had
It seems obvious that, unless the rule of res ipsa loquitur applies, there was insufficient proof to send this case to the jury. It is argued by the respondent that the rule in question did apply to the circumstances of this case; The basis of this argument rests upon the assumption that were the clamp arid clips, or the clamp alone, in good order, the accident would not have occurred in the ordinary course of human experience.
The question of the application of this rule to an accident forming the basis of an action between master and servant is not without difficulty. While it would be going too far. to say' that the rule of res ipsa loquitur is never to be applied in a case between master and servant, it is quite true that it has been rarely so app»lied. As a general principle of the law, in the absence of proof showing negligence, there is a presumption that the master has done his duty. The mere proof of an accident, even of an unusual character, does not destroy this presumption. The master is not liable simply because some part of an appliance has become out of order. . It must have been out of order long, enough to charge him with negligence in failing to discover it by proper inspection. While the happening of the accident-may suggest the existence of a defect, it does not alone in itself give rise to a presumption .of negligence in failing to
On the theory that the accident was caused by a loosening of the bolts in the clamp and both - clips — and as. to this there is. no proof except as to one clip—-the plaintiff gave proof that in some of the uses of the crane in question there was a tendency on the part of the pulley to strike against the clips and thus transmit force of impact to the cable, which in turn was transmitted to the clamp, thereby causing a probable loosening of the bolts in the clamp, which would result finally in such a loosening of the clamp itself that -it would not- hold the cable which passed through it. Under these circumstances, it was claimed, there arose a necessity for frequent inspection of tins part of the appliance. Proper inspection would have discovered the loosening of the bolts. From the fact that the bolts were -loose at the time of the accident, it is contended that there was either no inspection or improper inspection. All of this argument assumes, necessarily, that the bolts of the clamp were in fact loose some considerable time before the accident. As to this there is no proof, however, and unless this assumed fact can rest upon a presumption, it has no basis. It appeared from the proofs given by the plaintiff’s witness Plank that there was frequent inspection of the appliances, one inspection being had a day or two before the accident.
. It would appear, -therefore, that there was not sufficient evidence to justify the submission to the jury of the question of the. defend-, ant’s negligence. •
The judgment .and order should be reversed and a new trial granted, costs to abide the event. -
Jenks, P. J., Hirschberg, Thomas and Woodward, JJ., concurred-.
Judgment and order reversed and new trial granted, costs to abide the event.