
    Mary Lee, as Ad’mx of the Goods, Chattels, etc., of Michael Lee, deceased, Resp’t, v. Barrow Steamship Company, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 4, 1887.)
    
    Negligence—Master and servant—Duty oe master in furnishing
    IMPLEMENTS.
    A master is bound to exercise due care in selecting and furnishing fit implements for the use of his servants, but he is not a guarantor of the safety of the machinery.
    2. Same—Contributory negligence.
    A servant whose duty it is to inspect materials before putting them into use, and who neglects so to do, and it results in an injury to him, is guilty of negligence, which if it had resulted in an injury to another person, would have been imputed to the master, and would certainly defeat any recovery on behalf of himself.
    8. Same—Assuming duties of another servant.
    If it were not the duty of a servant to inspect the materials to be used, but in the absence of the one whose duty it was he assumed and undertook, to perform the duty of another, and injury resulted from an improper performance, such injury would be the result of his own negligence, for which his estate cannot recover.
    The defendant is a foreign corporation, and is the owner of a steamship known as the Devonia. Plaintiff’s intestate was a longshoreman employed by the firm of Henderson Brothers of New York, and worked for them as a gangway man in February, 1884.
    On the 20th of February, 1884, said steamship was lying at pier 21, North River, discharging cargo. Said intestate was gangway man in charge of the hatch. Between three and six o’clock in the afternoon of that day he got orders from the foreman to rig up hatch No. 5, abaft the third or mizzen mast. He went with two other longshoremen and fellow employees to a small house on pier 21, where rigging was stored. They went in and selected two' “whips,” “straps ” and “blocks ” from among a large number there.
    These they took aboard the Devonia and, with the assistance of said fellow employees, said intestate rigged the rope straps to a wire span about twenty-five feet about the deck, hooked the blocks into the bights of the straps and into these blocks rove the “ whips ” to run down into the hatch.
    The following day said intestate took charge of this hatch and superintended the work of unloading pig iron, by means of the tackle rigged as aforesaid, from 7 A. M. until about 3 P. M., when, as a drought of iron was being lifted from the hold, both bights of one of the straps on the span broke and the block, being thus released fell .and struck said intestate on the head and killed him.
    This action is for damages for alleged negligence of defendant in causing (through their agents) such death. Upon the trial plaintiff had a verdict for $2,500 and from the judgment thereon entered and an order denying a. motion for a new trial this appeal is taken.
    
      Frederick G. Gedney, for app’lt; A. G. Vanderpoel, for resp’t.
   Larremore, C. J

While a master is bound to exercise due care and diligence in selecting and furnishing fit implements for the use of his servants, he is not a guarantor of the safety of the machinery. Painton v. N. C. Railway Co., 83 N. Y., 7.

It is not claimed on behalf of plaintiff that the tackle provided was originally of inferior quality. The contention is that the rope in question had been affected by dry rot and thereby weakened, that such defect was discoverable by inspection, and that it was the duty of defendant to so inspect and discover such imperfection. But the defendant is a corporation and must act in this matter as in all others by its agents or employees, and the question arises whose duty was it to make the proper inspection under all the circumstances of this case.

I am of opinion that it was the duty of plaintiff’s intestate to inspect the rope, chosen by himself, before putting it to use, and in neglecting so to do he was guilty of negligence which, if it had resulted in an injury to another person, would have been imputable to the master and must certainly defeat any recovery on behalf of himself or his estate.

The evidence shows that the deceased, who was “gangway man,” and two fellow employees went, on the day named, to a storehouse on the pier, where all the tackle was kept, and themselves selected the “straps,” “whips,” etc., to be used in rigging the hatch for unloading cargo. The defendant was familiar with the appliances there at his disposal, and, being “gangway man,” was charged with the duty of putting up a proper and safe rigging. Obviously in selecting the materials to be used he was required to inspect them and not to use any which were unfit for the purpose.

To hold otherwise would be in effect to say that if any worn out or defective “strap” happened to be hanging in the storehouse, no matter how many perfect ones were there also, and an employee, charged with preparing a proper rigging, used such defective strap without testing or inspecting it, and was injured in consequence, the master would nevertheless be liable. In other words it would be to require the master to guarantee every piece of rope that chanced to be in the storehouse. According to plaintiff’s own theory the alleged defect was discoverable by inspec- ' tian.

If, therefore, the rope broke by reason of such defect it must have been because the person whose duty it was to make the examination neglected it. As this person was plaintiff’s intestate himself such negligence must prevent a recovery herein.

Plaintiff’s case is not strengthened by the claim that the accident resulted from the negligence of the storekeeper. It seems that such a person was employed to take general care of the storehouses or shanties on piers 20 and 21, in which the tackle was kept, and of the tackle itself. An attempt was made to show that it was the exclusive duty of such storekeeper to select the materials to be used in rigging any hatch, and that the longshoremen and stevedores were not permitted to help themselves to tackle, but were bound to apply to the storekeeper and use what he handed them.

The evidence on this point is by no means satisfactory. Plaintiff’s own witnesses admit that they have on occasions taken their own tackle and defendant’s witnesses deny that it was the exclusive province of the storekeeper to select tackle for the men, and aver that his duties were merely general and supervisory and that a “gangway man” was allowed and required to choose his own materials. But, however this may be, the storekeeper was absent when the intestate procured the tackle in question.

The fact is undisputed that he and his companions selected it themselves. If he then assumed and undertook to perform the duty of another man, and injury resulted from an improper performance thereof, such injury would still be the result of his own negligence for which, of course, his estate cannot recover.

I am of opinion, therefore, that, in any view of the case, the plaintiff’s intestate was guilty of negligence and that the complaint should have been dismissed.

The judgment, should be reversed and a new trial granted, costs to abide the event.

Daly and Van Hoesen, JJ., concur.  