
    Carrie Jarvis, as Administratrix, etc., of William W. Jarvis, Deceased, Appellant, v. The Northern New York Marble Company, Respondent.
    
      Negligence — injury to an employee from tlye breaking of a dozy and rotten mast of a derrick — the ignorance of the master is not an excuse to him—no assumption of such risk by the employee.
    
    In an action brought to recover damages resulting from the death of' the plaintiff’s intestate 'while in the employ of the defendant, in consequence of the breaking and falling of a derrick, it appeared that the mast of the derrick was broken in three or four pieces; that the exterior was apparently sound, but that the interior was powder posted and dry rotted to such an extent that a knife-blade could be driven into it to the handle; that the derrick had been in use three and one-half years and that the mast was made of spruce timber which had been painted when green, such treatment having a tendency to shorten its life and make it. dozy and rotten within.
    The derrick had remained in the place of the accident about four, months; at the time it was placed in position the defendant’s superintendent, who apparently regarded the duty of inspection as incumbent upon him, made an examination of the mast, stabbing it with a knife from the bottom to the top, and cutting out shavings, but did not bore into it or take any measures to ascertain whether it was dry rotted in the interior. This was the last time the derrick was inspected.'
    
      
      Held, that it was error to nonsuit the plaintiff;
    That the defendant’s ignorance of the defective condition of the interior of the mast did not reliex s it from liability if such condition could have been discovered by a proper inspection;
    That the plaintiff's intestate, who was employed about the derrick, did not assume the risk of the accident, as it did not appear that he had any knowl. edge of the defective condition of the mast or that it was discoverable by ordinary observation, or that it was his duty to make that inspection which alone would reveal its defective condition.
    Appeal by the plaintiff, Carrie Jarvis, as administratrix, etc., of William W. Jarvis, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of St. Lawrence on the 13th day of October, 1898, upon the dismissal of the complaint by direction of. the court after -a trial before the court and a jury at the St. Lawrence Trial Term.
    The action was brought to recover damages for the death of William W. Jarvis, the plaintiff’s intestate, by reason of the alleged negligence of the defendant.
    The defendant is a domestic corporation, owning and operating a marble quarry at Gouverneur, in St. Lawrence county. The plaintiff’s intestate, an enrployee of the defendant, was assisting in hoisting a stone of about ten and a half tons weight from the defend-, ant’s quarry on September 13, 1897, when he was killed by the breaking and falling of the derrick used for hoisting. The duties of Jarvis, the intestate, were to watch for and answer signals from the bottom of the quarry, to communicate them to the engineer, take care of the derrick and oil the parts of it necessary to be oiled, to direct where a block should be placed when it reached the surface, and to see that it was taken and placed on the car.
    The derrick had been in use three and a half years. The mast was fifty-five feet long, .twenty-two inches thick at .the butt and fifteen and a half inches thick at the top. When the derrick was constructed the mast was of green spruce timber just from the woods and was painted with two coats of paint. The mast was broken in three or more pieces. The exterior, which had been painted, was apparently sound, but within it was powder posted and dry rotted so that where it was broken a knife blade could be run into it to the handle.
    
      About four months before the accident the derrick was moved from the place where it had previously been operated to the place where it was used at the time of the accident. At that time Webb, the superintendent of the defendant, with Whitmore, who was in the employment of the defendant, as he says “ taking care of mill and machinery,” made an examination of the mast at the base where it went into the socket, also the end that was to go into the socket on top and found the exterior sound. They touched it with a knife from the butt to the top,” stabbed into it with a knife from the bottom to the top; cut out some shavings and found them sound. They pulled out with a claw bar the five-eighth-inch iron pins which had been driven into the mast for use in climbing; drove them in about a fourth of an inch deeper than at firsthand they apparently went into sound wood. They “ did not bore into the'mast or boom ” and “ did not take any means to ascertain whether the stick had become dry rotted in the center.”., The superintendent testified “ during the four months it was in the last position after it was erected I did not examine the derrick at any time.”
    
      Vasco P. Abbott, for the appellant.
    
      Watson M. Rogers, ior the respondent.
   Edwards, J.:

I think that the learned trial court erred - in dismissing the.complaint. The law is well settled that the master is liable for an injury to the servant for defects in machinery which could have been discovered by the exercise of proper care, and a duty, is imposed upon the master to make such reasonable inspection from time to time as may be necessary to enable him to ascertain whether the machinery is in a reasonably safe condition for use by- the servant. (Ballard v. Hitchcock Mfg. Co., 51 Hun, 188 ; Egan v. Dry Dock, E. B. & B. R. R. Co., 12 App. Div. 559 ; Durkin v. Sharp, 88 N. Y. 225 ; Pantzar v. Tilly Foster Iron Mining Co.. 99 id. 368.)

. The court, in granting the motion for a nonsuit, said : “ There is nothing to show that any inspection which would be reasonably expected from defendant would have discovered this (the defect iii the center of • the mast). * * * If they were bound to inspect it I think they made a proper inspection.”

I think the trial court was under a misapprehension of the law and the evidence. It is the province of the jury to determine whether or not a proper inspection has been made by the master when there is any evidence from which it may reasonably be inferred. (McGovern v. C. V. R. R. Co., 123 N. Y. 287; Egan v. Dry Dock, E. B. & B. R. R. Co., supra.)

There was evidence in this case from which the jury might have inferred that the master had failed in the performance of its duty of inspection and that such omission was the cause of the injury. It clearly appears in the evidence, and does not appear to be controverted, that the mast of the derrick broke and fell in consequence of the dry rot of the interior, which was considerable in extent. The painting of this spruce mast when green had. a tendency to shorten its life and make it dozy and rotten within. This painting had made a sort of a shell of the exterior whereby the condition of the interior, by ordinary observation, was not discoverable. Whitmore says that at the time when he and the superintendent made an examination, four months before the accident, they did not take any means to ascertain whether the stick was dry rotted in the center, and says that he does not think it would be powder ported and dry rotted on September thirteenth, when it fell, if it had been thoroughly sound in the forepart of June, when it was set up the last time. Webb, the superintendent of the defendant, testified : “ During the four months it was in the last position after it was erected I did not examine the derrick at anytime * * * ; never took a bit and bored into the derrick and examined the chips to ascertain whether the interior of the stick was sound. If I or some of the men had taken a bit and bored into it and examined the chips that came out, we could have ascertained whether it was powder posted or dry rotted, possibly.”

The defendant’s ignorance of the defective condition of the interior of the mast does not relieve him from liability if, by the exercise of proper inspection, it could have been discovered. (Benzing v. Steinway & Sons, 101 N. Y. 553.)

The duty of inspecting the derrick to ascertain whether it was reasonably safe for use is not shown to have been delegated by the master to the plaintiff's intestate.

It is true that Webb, who had been for eight years the superintendent of the defendant, says: “ When Jarvis (the intestate) was sét to work there, I gave him directions with reference to his care of the derrick. I told him 1 would hold him responsible for the proper care of that derrick,”'but lie also specified the duties of Jarvis, of which this was not one. Furthermore, it appears-from the testimony of the superintendent that he regarded inspection as his " duty, He says that he made the inspection when the derrick was setup, four months previous to the accident, and, in making the tests, he was assisted by Whitmore, who was employed in “ taking care of mill and machinery,” and further says that after the derrick had been set up he saw it every day, passed under it, observed its condition, ran his eye up and down the mast, looked at the cap at the top, saw the action of the guys that nothing had gone amiss, to see that'nothing of the anchorages had given away, and says : “ It'was part of my business to supervise those things.” There is no evidence from which the court can say that the duty of making the usual and ordinary tests to ascertain the condition of the interior of the mast and of determining whether it was reasonably safe for use was transferred from the defendant to the plaintiff’s intestate.

Nor do I think that the defendant can relieve itself from liability on the ground that the intestate had the same means of knowing the defective condition of the mast as had the defendant, or that it was a risk which the servant assumed. It does not appear that the intestate had any knowledge of the defective condition of the' mast, nor was it discoverable by ordinary observation, nor was it his duty 'to make that inspection which alone would reveal the defective condition. The risks which the servant assumes are those which- are obvious or which are unavoidable after the master has exercised proper precaution in guarding against them; and the servant has a right to rely upon the performance of that duty by the master. (Pantzar v. Tilly Foster Iron Mining Co., supra.)

I am of opinion that there were questions of fact in the case which should have been snbmitted'to the jury, and that the judgment entered- upon the nonsuit should be reversed, and a new trial granted, with costs to abide the event.

All concurred

Judgment reversed on law and facts, and a new trial granted, with costs of appeal to appellant to abide the event.  