
    Isaac F. Scandell, by Edward B. Scandell, his Guardian ad Litem, Appellant, v. The Columbia Construction Company, Respondent.
    
      Negligence —fall of a dm'ick injuring an employee— duty of the master to keep it in repair—several proximate causes contributing to the accident — expert witness ' as to the character of the derrick.
    
    The duty of a master to keep in repair the machinery, implements and appliances furnished by him to his servants, is as absolute as the duty to furnish them in the first instance, and cannot, be delegated by the master so as to relieve him from liability for its non-performance.
    Where, in an action brought by an employee against his employer to recover damages for injuries sustained in consequence of the falling of a derrick boom, evidence is given authorizing the jury to find that the accident happened because appliances at the top of the spar — which were found to be displaced after the accident — were unsuitable when originally furnished or had become so through the employer’s failure to properly inspect and repair them, the fact that an eyebolt at the throat of the boom was found to be broken after the accident, and that it was not claimed that the eyebolt was an improper appliance or out of repair, does not justify the court in dismissing the complaint.
    The case is within the rule that when several proximate causes contribute to an accident and each is an efficient cause, without the operation of which the accident would hot have happened, it may be attributed to all or any of the causes, but that it cannot be attributed to a cause unless without its operation the accident would not have happened.
    A witness, who has built and operated derricks, more or less similar to the derrick which fell, is competent to give an opinion as to the perfect or imperfect character of the latter, although he never owned or constructed a derrick precisely like it.
    Appeal by the plaintiff, Isaac F. Scandell, by Edward B. Scan-dell, his guardian ad litem, from a judgment of the Siipreme Court in favor of the defendant, entered in the office of the clerk of the county of Rockland on the 1st day of June, 1899, upon the dismissal of the complaint by direction of the court, rendered after a trial before the court and a jury at the Rockland Trial Term, with notice of an intention to bring uj) for review upon such appeal an order directing the dismissal of the complaint upon the merits, and refusing to submit said action and the questions of fact arising upon the evidence therein to the jury.
    
      
      William McCauley, Jr., for the appellant.
    
      II. S. Handler [Clarence Lexow and George M. Mackella/r with him on the brief], for the respondent.
   Hatch, J.:

This action was brought to recover damages for an injury claimed to have been sustained by the plaintiff on account of- the negligence of the defendant. It appeared upon the trial that the defendant was engaged in unloading a vessel laden with asphalt, lying at the wharf at Jones’ Point. The asphalt was lifted out of the hold of the vessel by means of a derrick which was operated by steam power. The plaintiff was the driver of a horse which was attached to a cart. The method of conducting the operation was to back the cart to a point near the vessel, the asphalt was lifted in a bucket which was attached to the end of a boom, swung around to the cart and its contents dumped therein and hauled away. At the time of the accident which resulted in the injuries complained of, the plaintiff stood upon the thills of the cart in front of the box, and was reaching out to catch the bucket as it swung around, when the boom gave way and fell, striking the plaintiff and inflicting quite serious injury. There was no question of contributory negligence in the case, nor any question of the negligence of a coemployee. The only point litigated upon the trial was the negligence of the defendant, and the ruling of the court in dismissing the complaint proceeded upon the ground that its negligence was not established.

The claim on the part of the plaintiff was that the defendant had failed in its obligation to provide a safe and suitable derrick for the purpose for which the same was used. It is well settled that the obligation of the master requires the exercise of reasonable care to furnish a safe and suitable instrument, tools, implements, appliances and machinery for the performance of the work for which such articles are designed. (Benzing v. Steinway (& Sons, 101 N. Y. 547.) Such obligation is a continuing obligation, and imposes a duty as absolute to keep the machinery and articles in repair as is the original obligation to furnish safe and suitable machinery, implements and appliances. (Fuchs v. William H. Sweeney Manufacturing Co., 12 N. Y. Supp. 870.) This is a primary obligation which cannot be delegated by the master, so as to shield him from responsibility. (Tomaselli v. Griffiths Cycle Corporation. 9 App. Div. 127.)

It is the claim of the plaintiff that the fastening of the boom to-the upright or top of the spar of the derrick was, when furnished, unsafe and unsuitable for the purposes for which it was used; and that, in addition thereto, care and caution were not exercised to see that the same were kept in proper order and repair during the period of its use, in consequence of which the same became unsafe and infirm, and finally resulted in their giving way and permitting the boom to fall. It appears from the record that a model of the derrick was used upon the trial, which fully exhibited the method in which the derrick was worked and the causes which produced the fall. This model does not accompany the record upon this appeal, in consequence of which we are left to a Verbal description of the derrick and its claimed defects. Very much of the testimony which was given hy the plaintiff was explanatory of the derrick in connection with the model, and for this reason the detailed description is in some respects obscure and uncertain. It appears, however, that the boom was fastened to the top of the spar by two clevises connected with two" chains fastened to the boom, the clevises being fastened to an iron plate resting upon the spar. The plate was held in position by means of an iron pin, which was driven through a hole in the iron plate and into the spar a distance of nine or ten inches. The pin was an inch and a half in diameter and the hole in the plate an inch and three-quarters. A strap) of iron about half an inch in thickness and three inches wide was fastened to the spar on the side opposite the hoom, came up over the iron band around the top of the spar and hooked over the pin which held the iron plate in position. This contrivance supported the weight of the boom and the loaded bucket attached thereto.

After the accident the iron band which went over the p>in was found to be raised above the pin; the pfin leaned a little towards the end of the boom, and there was a slight indentation on tlié side of the hole into which the pin was inserted. Evidently the iron strap which held the clevises about the pin had been forced up, permitting them to go over the top of the pin, and thus the boom fell. There was also found at what is called the throat of the boom, which, we assume was the point where it joined on to the spar, a broken eyebolt. Nothing else was found broken. The testimony on the part of the plaintiff tended to establish that the pin should have been keyed in position so as not to permit of its moving. Further evidence was given, tending to show that the hole had become enlarged, permitting the pin to wabble therein, and also that it was deeper than the length of the pin, and had permitted the same to fall further into the spar.

It is not at all necessary that we should set out in detail all of the evidence in this case. A careful reading of the record leads us to the conclusion that the proof was sufficient from which the jury would have been authorized to find that the occasion of the fall of the boom was the result of a failure either originally to furnish a safe, suitable and proper appliance, or a failure to properly inspect the same from time to time and keep it safe and in proper repair. It is undoubtedly true that the mere fact of the happening of an accident is not sufficient upon which to predicate the negligence of the defendant; neither is this a case where the rule of res ipsa loquitur applies. The fact of negligence must be established, either by the facts themselves or the legitimate inferences to be derived therefrom. The rule in this respect is clearly stated in Dobbins v. Brown (119 N. Y. 188), which is relied upon by the defendant to support the ruling of the court below. In that case, however, there was nothing which tended to show that the traveler or the appliance which broke was at all out of repair or defective in anywise, or but that it performed its office as it was expected to perforin it. It was constructed as such appliances are usually constructed, and an accident of a similar character had never before happened. There was nothing in the case, therefore, except the bare happening of the accident upon which negligence could be predicated. In the present case, as we have seen, the appliances at the top of the spar after the accident were found to be displaced, and further testimony was given that they were not properly secured for the purpose of bearing the strain which they were expected to bear. Upon this subject of course there was conflicting proof, but upon all the testimony the jury would have been authorized to find that the appliances were defective, either on account of their original construction or by permitting them to become out of repair. They had been in use for over two years, and no provision whatever was made by the defendant for their inspection from to time, and no person seems to have been charged with the obligation of their examination and repair. The top of the spar had been at one time repaired, and wedges had been inserted in the hole, authorizing the inference that the hole in the spar had become too large for the pin.

The jury were entitled to consider all of these facts, as well as others to which we do not advert, and from them we think they-might have reached the conclusion that the cause of the fall was the defective character of the appliances at the top of the spar and therefrom to determine that the defendant had not discharged its obligation or exercised reasonable care so to do in keeping such ajtpliances suitable and safe.

It is said, however, that it is quite as probable that the fall of the boom was occasioned by the breaking of the eyebolt at the throat of the boom, and that as there was no claim made in the testimony that the eyebolt was in any respect either an improper appliance or out of repair, therefore, this was the cause of the accident, and that a case was not made for submission to the jury. It was said by Judge Earl in Ring v. City of Cohoes (77 N. Y. 83): “ When several proximate causes contribute to an accident, and each is an efficient cause, without the operation of which the accident would not have happened, it may be attributed to all or any of the causes ; but it cannot be attributed to a cause, unless without its operation the accident would not have happened,” and such is the rule of the authorities. .(Durkin v. Sharp, 88 N. Y. 225; Grant v. Penn. & N. Y. C. & R. R. Co., 133 id. 657.)

The facts of this case are brought squarely within the decisions above cited, and sustain the rule that upon all of the evidence the jury would have been authorized to find that the occasion of the accident was the defective appliances at the top of the spar as the sole contributing cause, without which the accident would not have happened. If it appeared that there was no defect in the broken eyebolt, and it was proper for the purpose for which it was-furnished and used, the defendant would undoubtedly be entitled to a charge that if the accident happened from such cause no recovery could be had. But the court could not assume to determine such proposition as matter of law, or refuse to submit to the jury as a question for them to determine whether the accident was the result of defective appliances at the top of the spar. This case, therefore, presented a question for the jury, and it was error to dismiss the complaint.

Error was also committed in rulings upon the trial excluding competent testimony in several instances. It is not necessary that we should call attention to all, but only to one, as they were practically of the same class. It is sufficient to say that the rulings had upon the trial were in most cases quite favorable to the defendant, and in some respects more favorable than that to which it was entitled. As such questions may not arise upon another trial, we do not feel called upon to discuss more than one ruling.

The witness Jones qualified as an expert in the construction and operation of derricks more or less similar to the one in question. He testified that he knew how they were all ordinarily constructed and operated. It appeared that he had never owned a derrick precisely like the one in question, and for this reason the court excluded his evidence as incompetent upon the question of whether the appliances used upon this derrick were proper or not. Such ruling was error.' The witness had been qualified as an expert upon the subject-matter under investigation, and it was not necessary that he should have either owned or constructed a derrick precisely like this one. He had built derricks, knew the principle upon which they worked, and presumably the weight which they had to carry. He was, therefore, competent to give an opinion as to the perfect or imperfect character of this derrick; and expert testimony was admissible upon the subject. (1 Greenl. Ev. § 440, and notes and cases cited.) No such rule of limitation as that enforced by the court has ever, so far as we are aware, been applied in the case of a person who is qualified to testify as an expert upon the subject under investigation.

It follows that the j udgment should be reversed.

All concurred.

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