
    James Daly, Plaintiff, v. John R. Lee and Daniel J. Minahan, Defendants.
    
      Negligence — a beetle head made of green Umber in which a hard-wood handle works loose allowing the head to come off and injure a fellow-workman — mechanics who made the beetles may testify as to the fitness of the material.
    
    In an action brought against his employers by a workman who, while employed in a sewer trench, was struck and injured by a beetle head which came off its handle while it was being used by a fellow-workman in driving timber along the sides of the trench, evidence that the superintendent in charge of the work had directed that the beetle heads designed for such use be made of elm timber which was so green that the sap ran from it, and that the effect of seasoned hard-wood handles working in the timber would be to enlarge the holes in which they were inserted and cause the handles to become loose, is sufficient to support a verdict that the defendants did not use due diligence in furnishing proper and safe beetles, and that, in consequence thereof, the accident happened.
    Mechanics employed by the defendants to make the beetles are competent to testify whether the material used was fit for the purpose.
    Motion by the plaintiff, James Daly, for a new trial upon a case-containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court after a trial at the Monroe Trial Term.
    
      James P. O’Connor, for the plaintiff.
    
      George F. Yeoman, for the defendants.
   Follett, J.:

This action was begun October 27, 1897, to recover damages for a personal injury, caused, it is alleged, by the negligence of the defendants.

In June, 1897, the defendants were engaged in constructing the West Side sewer in the city of Eochester, having in their service a large number of common laborers and several mechanics, who were under the control of Mr. Clements, the superintendent of the work. June 4, 1897, the plaintiff was shoveling earth at the bottom of a trench about fifteen feet deep. Above him one of the defendants* laborers was engaged in driving lumber down by the side of the trench, presumably to keep its sides from caving in. The driving was done with a wooden maul or beetle, bound on each end with an iron ring. When the laborer struck a blow with the beetle its head came off from the handle and hit the plaintiff on the head, inflicting a serious injury, from which, at the time of the trial (February 3, 1898) he had not recovered. The contention of the plaintiff is that the defendants made the head of the beetle out of green elm timber which would not hold the handle securely, and for that reason was unlit for the purpose for which it was used. Two carpenters in the employ of the defendants on the work testified that they made the beetles by sawing blocks, about a foot in length, from a stick of green elm timber about ten inches square, which blocks were then rounded so that the ends would receive iron rings; that an inch or an incli-and-a-lialf hole was bored through the heads to receive the handles, and then the beetle heads so formed were sent to defendants’ blacksmith to iron and handle them. Before the beetles were ironed they weighed from twelve to fifteen pounds, and after they were finished from twenty to twenty-five pounds. The defendants’ head carpenter testified that defendants’ superintendent, Clements, procured a green elm stick for the purpose of having beetles made therefrom. lie said: “I told Mr. Clements that the lumber wasn’t fit for that business; it wasn’t dry enough, and Clements said that is the best he can do ; they were in a hurry for the beetles, and had to have them. * * * I told him the head was too green.”

The blacksmith who put on the rings and inserted the handles testified that when wedging the beetle heads they wrere so green that the sap or water ran from them. The handles to these beetles were made from seasoned hard wood, and the defendants’ blacksmith testified that the hard-wood handles working in - the soft heads would ■enlarge the hole in which the handle was inserted, and cause it to become loose. This nncontradicted evidence would have supported a verdict that the defendants did not use due diligence in furnishing proper and safe beetles for their servants, and that by reason thereof the accident occurred. It is said that a beetle is such a simple tool that the servants were as good judges of its condition as the master, which is undoubtedly true; but this accident did not happen to one who was using the tool, or who had had an opportunity to know its condition, but to a person engaged in shoveling fifteen feet below where the blows were struck with the beetle, which, so far as it appears, the plaintiff had never seen. Besides, a workman who had never used a beetle except for about two days wras directed to strike the blows, and he had not such knowledge of the instrument as would have justified him in refusing to use it as against the direct order of the foreman.

The evidence is not sufficient to charge the laborer who struck the blows with negligence, and the evidence shows that the plaintiff did not contribute to the accident.

This case is not like those where a master has furnished tools of apparently good quality manufactured by others, but it is a case which arises from a tool manufactured by the master who had knowledge of the defective material used.

There were some rulings which we regard as erroneous. The mechanics who were employed by the defendants to make the beetles were competent to testify whether the material used was fit for the purpose.

The plaintiff’s exceptions should be sustained and the motion for a new trial granted, with costs to the plaintiff to abide the event.

All concurred.

Plaintiff’s exceptions sustained and motion for a new trial granted, with costs to the plaintiff to abide the event.  