
    James J. Corbett, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Fourth Department,
    May 1, 1912.
    Master and servant — negligence — injury to car repairer by breaking of jack handle jack is “hoist” within statute—“structure,” what constitutes — Labor Law, section 18 — question for jury.
    A ratchet jack, operated by a handle and used by a car repairer in raising and lowering a car, is a “hoist or mechanical contrivance” furnished by ' an employer for an employee’s use in repairing a “ structure ” within the meaning of section 18 of the Labor Law, which prohibits an employer from furnishing unsafe, unsuitable or improper contrivances.
    Where, in an action by a car repairer to recover for personal inj uries, it appears that the handle of a jack broke and struck him in the face while he was lowering a car, the breaking of the handle, if unexplained, is sufficient to require the submission to the jury of the question whether the jack was defective, and a finding that defendant was negligent because it furnished an unsafe contrivance will not be disturbed.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the County Court of Oswego county in favor of the plaintiff, entered in the office of the clerk of said county on the 13th day of March, 1911, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 16th day of March, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      Francis F. Cullen and Henry Purcell, Jr. [Purcell, Cullen & Purcell], for the appellant.
    
      D. P. Morehouse [Morehouse, Mizen & Morehouse], for the respondent.
   Robson, J.:

Plaintiff, a skilled mechanic employed by defendant, had been working for it in the capacity of a car repairer in its yards at Oswego for several years prior to the occurrence which is-the cause of action upon which he has recovered the judgment now before us for review.

Just before the accident plaintiff and a fellow-workman in. the course of their duty made some repairs to the trucks of a freight car. To make these repairs it was necessary to take the defective trucks out from under the end of the car, which rested upon them, and to which they were attached. This required that the end of the car he raised sufficiently to free its comiection with the trucks, which were then taken from under the car and the repairs made. Two ratchet jacks, one operated on each side of the car were used in raising it. These jacks may he used either to. raise or lower heavy, objects and are equipped with a mechanical device, so that the operator'can readily adjust them to operate either in' raising or lowering the head of the jack, as desired. They have a metal socket which is connected directly with the mechanism of the jack, and this socket when fitted with a wooden lever, called a jack-handle, forms the arm of the jack by which it is operated. These arms are worked by hand in an up and down movement similar to the operation of a pump handle. The jack-handles are between four and five feet long, and are about three inches in diameter, except that each end is tapered for seven or eight inches of its length, so that either end fits the socket of the jack.

. Plaintiff and his companion having repaired the trucks and put them in position under the car, then proceeded to lower the car, using the jacks, which were placed as they had been in the operation of raising it. To lower the jack the operator first presses the arm or handle down' until the jack unlocks, and then lets up on it until the ratchet of the jack again engages, and the movement is repeated until the object has been lowered the distance desired. Each complete operation of the handle lowers the j ack about an inch. The car had been lowered some inches and plaintiff again put his weight upon the lever for another movement of the jack, and apparently had just released the ratchet when the jack-handle broke in his hands twelve to fifteen inches from the extreme end releasing the jack from the pressure he was then exerting on the handle, and the weight of the car caused' the handle to fly up and strike him .on the head and face with such force that he was seriously injured.

The trial court held that the jack was a “ hoist or mechanical contrivance ” furnished by defendant for plaintiff’s use in repairing a “structure,” and, as such, came within the classification of appliances and contrivances which an employer is by the provisions of section 18 of the Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36) prohibited from furnishing unless they are safe, suitable and proper, and so Constructed as to give proper protection to the fife or limb of the person so employed in repairing the structure. That the car was a “ structure ” within' the meaning of that term as used in the statute seems to have been in effect decided in Caddy v. Interborough Rapid Transit Co. (195 N. Y. 415).

At the time he was hurt plaintiff was still engaged in repairing the car, for it is apparent that replacing the trucks was quite as necessary a part of the work before the car was completely repaired for service as any other thing connected with the operation.

It is doubtless true that the word “ hoists ” as used in the statute would not in the usual acceptance of the term include a jack. But, even applying the rule of ejusdem generis in construing the statute, it would seem that a jack, used as this was in making repairs to the car, is a mechanical contrivance used in lifting or lowering heavy bodies, which is an accepted definition of the word, and might, therefore, be considered as a contrivance included in the generic description of the appliances which the statute in terms designates.

There was no evidence of any defect in the jack, except that furnished by the fact that the handle broke while properly used and operated for the purpose for which defendant furnished it. If I am right in my conclusion that an unsafe jack is an article which the statute forbids an employer to furnish for the purposes specified in the act, then the fact that it broke under the conditions above referred to, if unexplained, was at least sufficient evidence to require the submission to the jury of the question whether the jack Was defective, and a finding that defendant was negligent because it furnished an unsafe contrivance should not be disturbed. (Madden v. Hughes, 185 N. Y. 466; Gombert v. McKay, 201 id. 27; Haggblad v. Brooklyn Heights Railroad Co., 117 App. Div. 838; Cummings v. Kenny, 97 id. 114; Smith v. Variety Iron & Steel Works Co., 147 id. 242; Huston v. Dobson, 138 id. 810.)

Appellant’s counsel urges that even conceding ■ that the jack-handle was defective, it cannot be properly considered as warranting a finding that the jack itself was defective. This claim is based upon the fact that the jack-handle was a simple appliance fitted for use in any jack of similar construction; that they were furnished in sufficient quantities so. that any employee could serve himself with a satisfactory handle, either by procuring a néw one from the shops, or by selecting any one of a number easily accessible in the yards, if for any reason the one he was using was unsatisfactory; and that plaintiff could determine for himself as easily as could the defendant whether the handle he was using was safe and satisfactory. But I think the handle was as much an integral and necessary part of the jack itself as any part of its structure or mechanism; for its construction required the use of a handle to efficiently operate it. If the handle is a part of the jack, then the statute prohibits defendant from furnishing an unsafe handle equally as it does from supplying a jack defective in any other essential part. It does not appear what, if any, inspection of the handles defendant made or required. Nor does it appear what kind of wood they were made of; and absolutely nothing appears in evidence as to the condition of this particular .handle beyond* the fact that plaintiff says that it appeared to him to he all right and that it afterwards broke while he was properly using it. It was incumbent upon defendant at least to show some care and diligence both in the manufacture and reasonable inspection of these handles to the end that their “safety, efficiency and quality ” might be determined. (Pettersen v. Rahtjen’s American Composition Co., 127 App. Div. 32.)

The judgment and order should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  