
    Delia Larkin, as Administratrix, etc., of Michael Larkin, Deceased, Respondent, v. New York Telephone Company and Queensborough Gas and Electric Light Company, Appellants.
    Second Department,
    July 30, 1915.
    Gas and electricity — death, of “ splicer ” from electric shock—evidence — negligence — contributory negligence —failure to obey rules.
    In an action against a telephone company and an electric light company to recover for the death of a “ splicer ” employed by the former, it was claimed that the intestate failed to make a test for safety, and neglected to wear rubber gloves as required by the rules of his employer. The plaintiff offered evidence that it was the duty of the “trouble hunter,” who in due course preceded the intestate, to make a test and to remove any danger thus detected. She claimed that if the “ trouble hunter ” fell short in that duty then there was presented the question of a reasonably safe place to work, and that, the intestate’s omission to make the test merely presented a question as to his due care. Held, that upon such evidence there was a question for the jury.
    
      Evidence that the intestate could not do his work with rubber gloves does not relieve him from contributory negligence in the omission to use them at the time he received the fatal shock, where it was not clearly established that he could not use instruments with gloves, and the proof permitted an inference that at the time of the shock he was using instruments.
    Since the intestate dealt with emergencies due to accidents at different and unforeseen places, and there was no proof of an opportunity for observation or inspection by the defendant to ascertain whether the intestate put on the gloves before he went to work, the evidence was insufficient to establish that the rule as to the wearing of gloves had been disregarded to the knowledge, and consequently with the acquiescence, of the defendant.
    Separate appeals by the defendants, New York Telephone Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 29th day of December, 1914, upon the verdict of a jury for $10,000, and also an appeal by the defendant New York Telephone Company from an order entered in said clerk’s office on the 18th day of December, 1914, denying its motion for a new trial made upon the minutes. Also an appeal by the defendant Queensborough Gas and Electric Light Company from an order entered in said clerk’s office on the 4th day of January, 1915, denying its motion for a new trial made upon the minutes.
    
      John C. Robinson, for the appellant Queensborough Gas and Electric Light Company.
    
      Alexander Cameron [Arnold W. Sherman and Benjamin F. Briggs with him on the brief], for the appellant New York Telephone Company.
    
      John M. Ward [Arthur D. Kinney with him on the brief], for the respondent.
   Jenks, P. J.:

We now have the record of the new trial granted herein (Larkin v. Queensborough Gas & Electric Light Co., 158 App. Div. 414), and this discussion should be read with reference to our former opinion. Of course, the plaintiff strove to overcome the difficulties of the first trial. She cannot be criticised in that such striving was sinister, either by suppression or supply of proof. She contends that the former witnesses recalled on this trial did not change their testimony, but amplified it. There are nine of such witnesses and three new witnesses. One witness called by the plaintiff on the first trial was not called by the plaintiff on this trial, but was put upon the stand by the defendants.

Upon the .former appeal we said that the faults of the plaintiff’s intestate which inter alia precluded an affirmance were the deliberate disobedience of rules and the omission of well-known precautions. We specified his failure to make a test for safety and the neglect to wear rubber gloves. The plaintiff now adduces proof that it was the duty of the “trouble hunter,” who in due course preceded the intestate, to make a test and to remove any danger thus detected. Her theory is that if the trouble hunter fell short in that duty, then there was presented the question of a reasonably safe place to work, and that the intestate’s omission to make a test but presented a question of his due care, and not of his violation of a duty cast upon him. It seems to me that upon such proof there was a question for the jury. (See Greif v. Buffalo, L. & R. R. Co., 205 N. Y. [opinion per Cullen, Ch. J.] 250, 251, and authorities cited, and Johnston v. Syracuse Lighting Co., 193 id. 592.) But in view of our disposition of this appeal, it is needless to determine whether the proof upon these features of the case was sufficient to uphold the verdict.

The intestate understood that the defect was a “blowout,” which is attended with the possibility of great danger. He violated a rule, brought home to him, that required the use of rubber gloves. The plaintiff would exculpate her intestate by the contentions, first, that he could not do his work with hands so gloved as to protect him, and second, that the defendant, who was the intestate’s master, had waived the rule. There is testimony to support the first proposition. But even if such testimony is to be fully credited, yet it did not establish clearly that the hands when gloved could not use a hook or some similar article in a part of such work, and it must be remembered that the proof permits the inference at least that the intestate was shocked at a stage of work when he was using instruments or a scissors. I think, then, that this proof did not justify the absolution of the intestate from negligence in the omission to use rubber gloves at the time he received the fatal shock. (See Cullen v. N. S. M. R. Co., 114 N. Y. 45; La Crop v. N. Y., L. E. & W. R. R. Co., 132 id. 510; Sheridan v. L. I. R. R. Co., 40 App. Div. 381.)

In our former opinion we held that there was not sufficient proof that the rule which required the precaution of rubber gloves had been disregarded to the knowledge and consequently with the acquiescence of the master. The custom or usage of an habitual violation or disregard of a rule upon which rests the doctrine of waiver by the master is confined to the conduct of the master’s employees. (3 Labatt Mast. & Serv. [2d ed.] 3011.)'The court told the jury that there was no direct evidence that the master knew that the splicers never used gloves, but that if the splicers had done so for a long period the jury were to say whether the inference would be that the master must have known of such omissions. Several present or former employees of the master testify that they never knew of a splicer’s use of gloves in doing this kind of work. The periods of their observation respectively were sufficient if mere lapse of time were always the test. But, as was said in Cameron v. N. Y. C. & H. R. R. R. Co. (145 N. Y. 400), it is not, but other considerations may well be of moment in determination of the master’s knowledge and consequent acquiescence. It seems to me that in the case at bai*, as in Cameron’s Case (supra), it is pertinent to ask how was the master to know of the habitual violations of the rule.? And the conditions which moved the court to exculpate the master from an imputation of negligence in Cameron’s Case (supra), are, to my mind, fully as favorable- in the case at bar. The intestate dealt with emergencies, due to accidents at different and unforeseen places along the lines of the defendant. The work at these places required him to ascend to the wires and pre- ■ sumably to work alone and free from observation or inspection. There was no proof that there was or that there could be any opportunity for observation or inspection by the master to ascertain whether the servant, before he went about his work, put on the gloves required by the rule. When the master had made this plain and positive rule, which the servant must have known was to protect him from lethal danger which was always possible in such work, had the master any reason to surmise that the intestate, rather than glove his hands, would disregard the rule to the peril of his life ? My inquiry is along the line of that made by the court in Cameron’s Case (supra). Without passing upon the other features of the case, I advise a reversal.

The judgment and order are reversed and a new trial is granted, costs to abide the event.

Carr, Stapleton, Mills and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  