
    Daniel Daley, Respondent, v. The Union Dry Dock Co., Appellant.
    (Superior Court of Buffalo — General Term,
    July, 1894.)
    Plaintiff was a laborer employed by the defendant, and was injured while moving a heavy steel plate by its falling from the clamp which held it. The clamp was fastened by a set screw, which tapered to a blunt point, with a concave depression in the end leaving a sharp rim. It appeared that the screw had been used for some years, and that the sharp edge had worn down so as to leave a smooth surface projecting on one side. There was no evidence that this tool had been inspected, and the evidence was conflicting as to whether similar accidents had happened before. Plaintiff had been employed on this work only two days before the accident. Held, that the question of the defective condition of the screw was a proper subject for the jury to pass upon, and that the court properly submitted to them. the question as to whether the defendant had performed its duty as to furnishing tools reasonably safe for the purpose for which they were designed and in keeping them in repair.
    Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury, and from order denying motion for a new trial on the minutes.
    Sprague, Morey, Sprague & Brownell, for appellant.
    Tabor, Shechan, Cunneen & Coatsworth, for respondent.
   Titus, Ch. J.

The defendant appeals from a judgment in favor of the plaintiff, entered upon the verdict of a jury, for $2,446.89, and from an order denying the defendant’s motion for a new trial on the minutes of the judge.

The plaintiff was employed as a laborer by the defendant in its yards on Genesee street in this city, and in common with other laborers who were engaged in removing steel plates to he placed upon vessels. They were in charge of a foreman who directed their work. At the time of the accident they were hoisting one of these plates from the track to get it onto a truck, when it would he moved by a running block and pulley to the place where it was to be used on the vessel.

These plates or sheets were from eight to twelve feet long, two to four feet wide, and about three-fourths of an inch thick. A tool or clamp, called a dog, was placed over the edge of the plate, midway from the ends, and fastened with a set screw, the end of which was screwed up against the plate. It was tapered down to a blnnt point, with a concave depression in the end, so that it left a sharp round rim or ring which, when screwed up against the plate, would press into the side of it and make it fast. According to the plaintiff’s witnesses this tool had been used some years, and the point or sharp edge of the rim had been worn off, leaving a flat, smooth surface projecting further on one side than on the other. The screw had on occasions before this failed to do its work, letting the plate slip from the dog and fall. The plaintiff had been employed at this work but two days before the accident, and had no knowledge of the worn condition of the screw in the dog, or of the fact that it had before failed to do its work. There is no evidence that the tool had been inspected by the defendant to ascertain its condition or need of repairs, nor were any repairs made on it until after this accident. After the plate had been raised by the pulley, and the men were pushing it along towards the vessel, the plaintiff having hold of it to keep it steady with one hand on the lower edge and the other on the side, it slipped from the dog and dropped to the platform, pulling the plaintiff down with it and cutting off his fingers. This plate weighed from 1,000 to 1,200 pounds. In fastening the screw a lever about two feet long was used, and, when it was in good condition, a boy could screw it up tight enough to hold. One of the men, who had been engaged in this work for some time, says he set the screw on this occasion, and tightened it up as hard as he could, but as they were moving the pulley along it jarred against one of the sheets and dropped out of the dog.

There is no question but what the dog Avas a proper tool for the purpose for which it was used, but it is claimed that the accident occurred by reason of allowing the screw to get out of repair, so that it did not properly and safely do the Avork for Avhich it Avas designed. One of the witnesses testifies that a few Aveelcs before this, while the foreman Avas there, the plate slipped and fell. “The end of the screw was so .dull that on the edge it was partly worn, with the exception of one little piece that was left from the pressure of the plate was a little higher than the other; that it was worn down as low as the end of the depression in the tool, except one little place.” Other witnesses testify that the screw had been worn down and was dull. That the screw was dull and worn is not disputed by the defendant’s witnesses, but there is a conflict in the evidence about whether this dog and screw had ever before failed to do its work, the defendant’s witnesses saying they never knew of an accident of that kind to happen.

This presented a fair question of fact for the jury to pass upon, and we think the evidence warrants the conclusion reached by them.

This case, then, is taken out of the rule laid down in some of the cases, that the fact of the long use of an appliance on countless occasions, which uniformly answered its purpose, without accident, may be continued without the imputation of negligence or carelessness. Burke v. Witherbee, 98 N. Y. 562; Marsh v. Chickering, 101 id. 396; Stringham v.Hilton, 111 id. 188.

It is claimed by the plaintiff, from this evidence, that because the screw was worn on the end one side more than the other, that when it was screwed up against the plate the longest point only would indent the plate, so that in a horizontal position from the center of the plate the weight of the plate upon the screw would, if it happened to be on one side, tend to tighten the screw, and if on the other side, loosen it and turn the screw backwards, and allow the plate to fall out.

We think, at least, the question of the defective condition of the screw was a proper subject for the jury to pass upon. The coxirt properly explained to the jury the duty of the master in supplying suitable and proper ajxpliances for the use of the servant, saying in substance that the master was not bound to furnish the best implements known or those of superior design, but only a tool reasonably safe for the purpose designed, and to exercise a reasonable degree of care in keeping it in repair, and when that is done the servant accepts the risk and the master is discharged from all liability. This was the question submitted to the jury, and in doing so we do not think error was committed by the court.

The only other question necessary to consider is the exception of the defendant “to the charge that the plaintiff testified that he had not seen or examined the dog is material upon the question of the defendant’s negligence. I ask the court to charge that that fact is not a material fact upon the question of the defendant’s negligence.” The exception and request were misleading, to say the least, as the court had not charged any such proposition in connection with the defendant’s negligence. In speaking of the plaintiff’s negligence the court said : “ The work was not complicated; it required but little skill, and, as appears, it was performed by an ordinary laborer; he had never seen the dog employed before; there is no evidence that he had any opportunity or that there was any occasion for him to examine or that he did examine it in the course of his employment, or that he had ever been requested to do so.” This was said while the court was speaking of the facts bearing upon the plaintiff’s negligence. The court then proceeded to charge the jury upon the law of the defendant’s negligence, and after fully instructing them upon that question proceeded as follows: “ The other question for you to determine is, if the dog was there open for inspection, so that the plaintiff could have seen it, so that when it was attempted to be fastened to this plate he could have observed by the exercise of ordinary care in connection with the performance of his duties that the tool was defective, had sufficient knowledge to be able to comprehend the fact, and in this instance he permitted the use of the tool, consented to the use of it in that condition, he would be responsible for the use of it, and could not call upon the defendant to recompense him for damages. As bearing upon that proposition you will take into consideration the length of time he had been at work there and the opportunity he had of examining this dog. His testimony is ‘ that he had never seen it before; that it had never been called to his attention.’ ” All tliis was said in connection with the question of the plaintiffs assumption of the risk. If there was a defect in the tool, and if the plaintiff had reasonable opportunity for knowing it, he assumed the risk and could not recover against the defendant for the injury. Nowhere in the charge is the plaintiff’s lack of familiarity with the dog spoken of as material upon the question of the defendant’s negligence. Counsel for the defendant was laboring under a misapprehension as to the. connection in which this language was used, and the court evidently understood his request as bearing upon the plaintiff’s negligence, as in that connection only was the language used, for he had fully and at length called the attention of the jury to this testimony, not in connection with or as bearing upon the defendant’s negligence, but as a fact which, if true, deprived the plaintiff of his right to recover.

We think, in view of what was said in the charge and the theory upon which the case was tried by both parties, that it must have been understood .by the jury as the court had already charged and evidently so understood the request to mean.

The only claim of negligence of the defendant which is supported by the evidence was that the dog and screw had got out of repair, and that the defendant had not taken the proper precaution to inspect it and ascertain its defective condition and repair it, but allowed it to remain in that condition for a .long time, and the question of the plaintiff’s knowledge of the condition was not material as bearing upon the question of the defendant’s negligence and had no relevancy to it, and the refusal of the court to charge was upon an irrelevant and immaterial matter. The case was not tried upon any such theory, and no claim had been made up to that time by the plaintiff or by the charge of the court that the plaintiff’s knowledge of the condition of the dog had anything to do with the question of the defendant’s negligence. The case was, so far as the defendant’s liability is concerned, fairly and favorably, at least to the defendant, submitted to the jury by the court in the charge, and we think no error was committed. Kissenger v. N. Y. & Harlem R. R. Co., 56 N. Y. 538.

This disposes of the questions raised by the counsel for the defendant in his brief, and if the conclusion reached is correct the judgment should be affirmed, with costs.

White, J., concurs.

Judgment affirmed, with costs.  