
    Irving R. Kellogg, Respondent, v. New York Edison Company, Appellant.
    First Department
    June 28, 1907.
    Negligence—master and servant:—injury by chip"flying from end of hand drill — assumption of risk.".
    The plaintiff engaged in holding a hand drill while it:-was being struck by a fellow-servant was injured in the eye by a splinter" flying from the upper end of the-drill which was burred or “ mushroomed ” by use. The-plaintiff was used to the employment, and hád selected the drill, which was made of proper • materials, and purchased from reputable manufacturers.-' The.plaintiff’s fellow - . servant had been directed by the defendant’s foreman to work faster, and in doing so struck a glancing blow on the drill causing the'-splinter to fly off.
    
      Held, that a verdict for the plaintiff based on a finding that he. did not assume the risk of using'the drill was against the weight of- evidence";
    That although in an action under the Employers’-Liability Act the assumption of risk is a question for the jury, still their verdict may be set "aside if against; the " weight, of evidence;,
    That the fact that the head ¡of the,drill was burred did. not - make it ii defective tool, it being shown that the head of such drill must necessarily be made soft, or it! would splinter when struck; . , -
    That it was- not negligence on the part of .the foreman .to direct the. plaintiff, and -his-fellow-workmen to hiirry their work.
    Appeal by the defendant, the ¡New York Edison Company, from a judgment of "the-Supreme Court in favor of the plaintiff, entered in the office of" the clerk of the county of ¡New York,on the 8th. day of-Juné, 1906, upon the verdict of a jury for $5,000,'and also from an order entered in said clerk’s office on the 22d day of June, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      Frederick Hulse, for the appellant.
    
      Herbert G. Smyth, for the respondent.
   Houghton, J.:

The plaintiff had been in the employ of the defendant for about a year and during that time had been engaged more or less in holding a hand drill, which work he described himself as competent to do. While engaged in drilling a hole as directed by the foreman, a longer drill than the one he was holding became necessary, and without any direction he went to the tool box provided by the defendant,-and the only drill long enough for the purpose which he found was one “mushroomed” or “burred” at the striking end. After using this drill for a few moments plaintiff and his striker stopped, and defendant’s foreman coming along asked if they had finished drilling the hole, and upon their replying that they had not, told them to get to work or he would report them. Thereupon plaintiff put himself in position, taking hold of the drill about two feet belo.w the top. After watching tliework a short time the foreman directed the striker to swing his hammer faster, and. shortly thereafter a foul blow struck the edge of -the drill, breaking off one of the burrs, which struck plaintiff in the eye inflicting the injuries for which he has recovered.

The action is under the Employers’ Liability Act (Laws of 1902, chap. 600), and the complaint alleges that the defendant was negligent in failing to provide the plaintiff with a reasonably safe tool with which to prosecute his-work and in employing incompetent and inefficient workmen, and in causing and directing the work to be .performed in an improper and dangerous manner; in that defend-, ant’s superintendent directed it to be done hastily and recklessly.

There was no proof that defendant’s superintendent was not a competent one or that defendant’s striker was not competent to do 1 such work; and the only question submitted to the jury by the court was as to whether or not the defendant provided the. plaintiff with a reasonably safe drill to nse in the prosecution of his work.

It was conceded that the drill was made of proper- material and purchased from reputable manufacturers. It was also conceded that the head of a drill must be of softer metal so that it will flatten out, thus forming burrs, otherwise it would chip off when struck.

The plaintiff’s position is that these burrs were allowed to grow too long on the drill in question, and should have been removed and the drill 'head redressed when they became one-eighth of an' inch instead of allowing them to remain until they were three-eighths of an inch in- length, as was'the situation at the time of the accident, and that lie did not assume the risk of using the drill in the condition, in which he found it.

■ If it be conceded that the. drill ivas defective, because the burrs were too long, we think the conclusion of the jury that the plaintiff did not assume the. risk of using it, which was necessarily involved in their verdict in his favor, was against the weight of-evidence. ■ .

While under the provisions of section 3 of the Employers’ Liability-Act whether or not the. plaintiff assumed the particular risk of one of these burrs chipping off from a blow of. the hammer was a question for the jury to determine (Kiernan v. Eidlitz, 115 App. Div. 141), still, if their verdict on that issue was against the weight of evidence it- was the duty of the court to set it aside. (Vaughn v. Glens Falls Cement Co., 105 App. Div. 136.)

Plaintiff voluntarily used the drill. Ho one compelled him to do so- lie. testified that he was familiar with drills. at all stages of burring, and described particularly the length of the burrs he found on this drill. 3ETe had been engaged in holding drills apparently long enough to acquire knowledge whether, a long burr was. more likely to chip off than a short one. Under such a state of facts the jiffy were not authorized in finding that the plaintiff did not know of the risk, if any there was, or that lie did not assume such risk as might be incurred by the use of the drill.

We áre also of the opinion that the verdict was against the weight of evidence as to the drill being a defective tool. • Concededly thé drill would have been defective had it been made of material so hard that it

would not -burr at all when struck. Plaintiff’s . expert testified that it was customary to rehead .a drill when burrs had grown to an eighth of an inch in length, and that if allowed to grow longer than repeated pounding pr^taU^§4 tpM and [paeje them more likely to fly off, and that although they‘often broke off when a square blow was struck, they were more likely to break when the drill was being used at an angle, as was the case at the time of the accident. On the other hand, the defendant’s experts testified that -there was no danger to a drill holder from a burred drill, and ■that the length of the burr made no.difference, and that a burr would not fly off with force when a square blow was struck, but drop off instead; and that the only way a burr could be projected with force from the head of the drill was by a glancing or foul blow, and.that in the practical use of a drill when the burrs became too long for convenience they were chipped off by the workmen themselves,, which was easily done.

The striker of the drill was standing slightly above plaintiff and the top of the drill projected somewhat above plaintiff’s head. The striker testified that when plaintiff was injured he struck a glancing blow, and the plaintiff, judging from the sound of the blow, testified that the hammer just struck the edge. of the drill and passed slightly above' his head and, the steel entered his eye.

The court charged the jury that the defendant was not responsible for the manner in which the blow was struck which caused the chip to fly.

From the facts appearing it is quite evident that the unfortunate' injury resulted not from any defect in the drill because the burrs were too long, but rather because an improper blow was struck. It .is quite difficult to see how a long burr would be more dangerous than a short one. Whether it was long or short, if it entered the eye it would cause injury, and with an improper blow there would be as much likelihood of the one chipping off as the other, and with a square blow the only éffect upon the metal would be to increase the burring. The court charged the jury that if the piece which entered plaintiff’s eye was a chip from the drill and not .a burr the plaintiff could hot recover, and the case was tried upon the theory that the burred condition was the only defect. The question involved is unlike those presented in Smith v. Lidgerwood Mfg. Co. (56 App. Div. 528) and in Crilley v. New Amsterdam Gas Co. (106 id. 127), upon which respondent relies. .

In the Smith case the question was whether the employer should protect his employee by screens from iron chippings living habitually from the operations of other workmen, and in the Crilley case the employer had furnished his workmen with-chisels so brittle that they chipped off when .struck. ' . .. :

In the present case the drill was properly made and' of, propel*' material when originally' furnished by defendant, and .the only question involved was whether or mot the defendant permitted it to. be used after it became defective.

The question of whether the defendant established proper rules for the protection of his employees, if Any were' necessary,' is not involved, for that question was-not submitted tb tlie: jury. • if or was .-the- plaintiff entitled tp recover because .of the negligence of .the defendant’s superintendent. It was not a negligent "act for. him' to direct.the plaintiff and his companion to continue their work and to . hurry about it.' Tie did not direct the plaintiff to. use-the'drill which he was using, nor is there- any proof that he knewthat if was burred in the manner described by. the plaintiff;

■ The judgment must be reversed and a new. trial granted, with ■ costs to the appellant to abide the event. ■' '.

Patterson, P. J.,. Ingraham, Clarke and Lambert, JJ., . concurred. ■

Judgment reversed, new trial ordered, costs to appellant to abide ' event. . • • •: ' ' ' ,  