
    Dennis Nugent, Resp’t, v. The Atlas Steamship Co., Limited, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    1. Negligence—Fellow servants—Liability of defendant.
    In an action to recover for personal injuries, it appeared that the plaintiff was injured by the fall of a scaffold while engaged in painting the defendant’s steamship. He was not in the employ of defendant, but was employed by a firm of painters. The contract provided that the ropes to sustain the scaffold should be furnished by defendant. Those brought on deck for that purpose were found to be unfit, thereupon the person in charge of the work and who was employed by the same firm as the plaintiff, was told that they might use any ropes they could find. There was no indication or suggestion that any particular rope was sufficient or proper to be used. Meld, that negligence could not be imputed to the defendant, because the rope chosen by the fellow-workman of the plaintiff proved insufficient to sustain the scaffold.
    3. Same—Liability to third parties.
    Liability to third parties exists where the defect in the article furnished is such as to render it eminently dangerous, and serious injury to the per; son using it, is the natural and probable consequence, assuming the defect not fo be so apparent as to constitute contributory negligence on the part of the person using it.
    Appeal from judgment entered upon the verdict of á jury at circuit, and from order denying motion for new trial.
    
      Everett P. Wheeler, for appl’t; George M. Curtis, for resp’t.
   Bartlett, J.

The plaintiff was injured by the fall of a scaffold while engaged in painting the defendant’s steamship Athos. He was not in the employ of the defendant corporation, but was working for a firm of painters who had entered into a contract to scrape and paint the vessel. That contract provided that the ropes to sustain the second tier of staging should he furnished by the defendant. Its language on this subject was in these words: “Ship to furnish ropes for the second tier of staging.” The staging-was erected by one Joseph Wilson, with the assistance of from four to six other men, who like himself were employed. by the firm of painters.

In putting it up he used a rope known to sailors as a try-sail yang, which was ordinarily a part of the running rigging belonging to the ship. According to Wilson’s testimony, a few ropes were brought on deck which were not good or fit to use, and thereupon the defendant’s shore boatswain or rigger, James Squires, told him and his companions that they could use what ropes they could find. They then took the trysail vang which proved insufficient to support the second, tier of staging with the painters, at work upon it, and broke under their weight, thus allowing the staging to fall upon the plaintiff and injure him severely.

The undisputed testimony indicated that this trysail yang was not only unfit to be used for the support of the scaffold, but that its insufficiency was apparent externally and ought to have been obvious to any one accustomed to the use of ropes, as a rigger or sailor. Wilson seems to have-used it, however, without observing its defective condition, although he testified that he was somewhat familiar with ropes, having been to sea for about twenty or twenty-two-years.

No attempt was made to show that any agent of the defendant pointed out this particular piece of rope' as a suitable support for the staging, but the theory of the plaintiff’s case seems to have been that the painters were led to believe that it was sufficient by the general direction from the-shore boatswain to use what ropes they could find, after they had rejected those which had first been brought on deck.

While no contract relation existed between the defendant corporation and the plaintiff who was injured, the-defendant owed him certain obligations arising out of its contract with his employers who had undertaken to paint, the ship. In furnishing the ropes for the support of the-second tier of staging under the contract, the defendant was bound to exercise reasonable care to provide ropes, which should be free from dangerous defects, and for a. failurejto exercise this care, the defendant would be liable to a person in the employment of the other party to the-contract. Devlin v. Smith, 89 N. Y., 470, 477.

“As a general rule,” says the court of appeals in the-case cited, “the builder of a structure for another party under a contract with him, or one who sells an article tif' his own manufacture, is not liable to an action by a third party who uses the same with the consent of the owner or purchaser, for injuries resulting from a defect therein, ■caused by negligence: The liability of the bulider or manufacturer for such defects is in general only to the person with whom he contracted. But notwithstanding this rule, liability to third parties has been held to exist when the defect is such as to render the article itself imminently ■dangerous, and serious injury to any person using it is a natural and probable consequence of its use.” In the' present case it was manifest that the use of rotten rope as ■a support for one of the tiers of staging on which the painters were to stand would be fraught with danger to those who might be upon it or beneath it.

If, therefore, a representative of the defendant had either furnished this particular trysail yang as a fit and proper rope to be used for the purpose to which it was applied. or if he had indicated a lot of ropes, of which this was one, as similarly suitable, and in consequence of such indication, it had subsequently been employed by the painters, in the manner in which it was employed, we think the ■defendant would have" been liable to the plaintiff in the action, assuming that the defect in the rope was not so apparent as to make it negligence on the part of the painters not to detect its true condition.

But the case made out by the plaintiff is quite different. The painters appear to have refused to use any of the ropes in the lot brought on deck at the instance of the defendant’ s shore boatswain, and by him indicated as being suitable and sufficient. Then, according to their account, they were told by the shore boatswain to take what they could about the deck. In this direction there was no expression of suggestion or indication that any particular rope or set of ropes about the deck was sufficient or proper to be used for the support of the scaffolding in question. It was tantamount to saying to the painters that inasmuch as they' were not satisfied with those ropes which had been shown them in the first place, they might choose for themselves from such others as they could find.

It may be said that this was practically, a refusal to furnish the ropes at all, and therefore a breach of the defendant’s contract; but even if it was, that would not render the defendant liable to this plaintiff. The defendant having utterly failed or refused to furnish any other ropes than those which the painters deemed unsuitable, if they went on to choose and take one for themselves, without any assurance as to its suitability from the defendant, the latter cannot be held liable, because their choice proved unfortunate.

Under the circumstances disclosed by the record in this, case, we think the negligence which caused the plaintiff’s injuries, was solely that of his fellow-servants, and there-' fore, that the recovery in his favor against the defendant,cannot be sustained.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Daniels and Brady, JJ., concur.  