
    James J. Meehan, Appellant, v. Edward B. Judson, Jr., and W. Judson Smith, as Receivers of the Syracuse Street Railroad Company, Respondents.
    
      Negligence — injury from the slipping of a motor from the top of a jack used to raise and lower it —proof as to the condition of the jack which requires the submission of the question of negligence to the jury — doctrine of obvious risk held to be inapplicable —contributory negligence.
    
    In an action brought against the receivers of a street railroad company to recover damages for injuries sustained by the plaintiff while operating a jack, used in removing motors from electric cars and returning them to their places when cleaned, it appeared that the jack, which was attached to a truck running on a track in a pit underneath the cars, consisted of a cylinder (passing at the top of a framework through two strips of iron encompassed by a collar), through which ran a piston rod, which was forced up by hydraulic .pressure applied by means of a lever worked like a pump handle. On the top of the piston rod. was an iron plate about a foot square, which was forced up beneath the motor to receive it when detached; and at a certain stage in the process of lowering the motor¡ there was placed upon this plate a wooden block, upon which the motor, weighing from 1,400 to 1,500 pounds, was supported. While a motor was thus placed, upon the day of the accident, and was being steadied by an experienced co-employee of the plaintiff, it. without warning, slipped off the block and injured the plaintiff, who was stooping over, pumping.
    
      There was no direct evidence as to what caused the motor to slip, hut the proof showed that there was a considerable play of the cylinder inside the collar; that there were no spikes or wedges to hold the cylinder in place, and that when the piston rod was out and the motor was supported upon the block, it deflected from the perpendicular four or five inches toward the north, in which direction the track had an inclination of one foot in six.
    There was also evidence that this unsteady condition of the cylinder and consequent sagging of the motor had existed for some time prior to the accident; that the company’s superintendent had had his attention called to it and that on several occasions — on one of which the superintendent was present — motors had slipped off. The plaintiff, however, who had been at work upon the jack for only two days prior to the accident, was not aware that it was out of gear.
    
      Held, that, upon the proof, it was error to nonsuit the plaintiff, and that the question of the company’s negligence should have been submitted to the jury; That the doctrine of obvious risks was not applicable to this case as the business was not in itself hazardous and, had the machinery been in proper condition and the piston rod remained erect, there was little danger of the motor falling off;
    That, in view of the plaintiff’s lack of experience, it could not be said, as a matter of law, that he should have discovered the inclination of the motor, but that he had a right to assume that the appliance was in proper repair; and that the question whether in its inspection he exercised care commensurate with the situation was for the jury.
    McLennan, J., dissented.
    Appeal by the plaintiff, James J. Meehan, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 10th day of December, 1897, upon the dismissal of the complaint at the close of the plaintiff’s case by direction of the court after a trial before the court and a jury at the Onondaga Trial Term.
    In 1896, the respondents were operating the Syracuse Street Railway, and the appellant was a laborer in their employ. During his service he was injured in a barn on Wolf street, in the city of Syracuse, while engaged in operating a device used in removing motors from the electric cars and returning them to their places when cleaned. This machine comprised a jack, which was stationed on a truck. The truck was run along a track in a pit which was under. the main track, which was about four feet three inches in depth. The. track in the pit on which the truck ran was two feet ten inches in width. Upon the truck was a framework of timbers, to which was attached a cylinder and a jack which was used for raising and lowering, these car motors. The jack was bolted to the truck at the bottom, and clips held it in its place, the bolts passing through them. The jack consisted-of a cylinder through which a piston rod ran, and this was forced up by hydraulic pressure, the force being applied by a lever, which was worked by hand like a pump handle, and which was about eleven inches from the ground. The piston rod was about two inches in diameter and twenty-two inches and a half full length. At the top of the framework the cylinder passed through two strips of iron, encompassed by a band or collar. On the top of the piston Tod was a plate about a foot square. In lowering a motor a block of Wood is placed on the plate ; this is forced up by the pump until the top of the block is flush against the motor. The motor is then detached from the car, and side blocks are placed upon the frame of the jack, and the jack pumped down until the motor rests upon these blocks. The large block .is then taken out, the jack forced up by the pump until the motor rests upon the plate, the side blocks are removed, and the motor is lowered by the'pump until it is upon the framework. A. reversal of this method raises the motor. Further facts appear in the, opinion.
    
      James Devine, for the appellant.
    
      W. A. Mackenzie, Jr., for the respondents.
   Spring, J.:

The appellant had been in the employ of the respondents since the fall of 1895 ; he had been taking care of the steam pump, and had done no work in connection with the operation of the jack until two days prior to the 2d of June, 1896, when he was injured. During these two days he was engaged in working the lever to hoist and lower the motors. Four motors had been lowered and cleaned in these two days, and that comprised the sum of respondent’s experience in that business; he had never heard any complaint of a defect in the jack and did not know it was out of gear. On the day of the accident the motor had been lowered and cleaned. The appellant was stooping over pumping, while Creighton, a co-employee, who had been at work for respondents for two and a half years, was steadying the motor, which was up sufficiently so that the square block had been placed under it. Without any warning the motor slipped off the block, striking the appellant’s leg and injuring it so severely that amputation of the foot was necessary. No direct evidence was given on the trial tending to show what caused the motor to slip. Creighton, who was sworn on behalf of the appellant, although evidently in sympathy with the respondents, was unable to account for the accident. The nonsuit was granted for the reason that the testimony, as viewed by the trial judge, failed to show any specific cause for the falling off of the motor, and no connection was established between it and the defect shown to have existed in the jack. The proof showed there was considerable play of the cylinder inside the collar. The witness Shields testified the play was nearly an inch, and when the piston rod was out it deflected from the perpendicular four or five inches at the top of the motor. This deviation was- toward the north, and the tracks also descended toward the north one foot in six, and the appellant, in pumping with the lever, was also at the north of the track. Shields testified this wabbling condition of the cylinder had existed for the entire year prior to the accident, during which period he was employed at intervals in connection with this jack. He further stated the sagging of the motor rendered the operation of pumping dangerous; that there were no spikes nor wedges to fasten the cylinder to the collar, and that gave the unrestricted play he described; that this defective condition he observed down to within two weeks of the .time of the accident. Shields spoke to Mr. Howard, the superintendent of resiondents, several times as to the defective condition of this jack and informed him it was dangerous to use. Sometimes the difficulty was that the bolts at the bottom of .the jack were loose, and they were readily and each time tightened with a wrench. Again, the complaint was the lever was too short, and, again, the defect pointed out was the • inclination of the piston rod; and these defects were not remedied. Motors had fallen off on three or four occasions before the injuries to the plaintiff. Shields is corroborated by three other witnesses. Bonny, who worked on the jack for six months, off and on, noted the play of the cylinder in the collar; that the deviation of the motor from a plumb line was four or five inches; that it was always in that condition; that it fell off once with him when the superintendent was present, and he testified that he called his attention to it, advising him it was dangerous, and that the motor was always leaning to one side. Bonny ceased working for the respondents in May, before the accident, and he. knew nothing of the motor after his employment ended. Cowan testified he noticed the sagging of the jack up to the time he quit working on it, which was about two weeks before the accident; that he spoke to the foreman, Howard, in regard to it; that the last conversation with him was about six weeks before the injuries to the plaintiff; that the witness was then putting up the motor, and he called the attention of the superintendent to the sagging, and stated he apprehended, it would fall off; that it then deflected four or five inches, and Howard jumped down in the pit, looked at it, said he thought it was all right, and to go ahead and put the motor in. He further testified this sagging continued uninterruptedly all the time he was working on the jack; that the deflection was four or five inches at the top of the motor, and that there were no spikes or anything inside the collar to hold it in place. The witness Barnes worked on the jack from the middle of January, 1896, until the evening of May twenty-ninth, four days before appellant was injured. The sagging condition of the motor continued until that time. We have, therefore, the proof by four witnesses that this jack failed to perform its office properly; that it sagged toward the north four or five inches, with the motor weighing from 1,400 to 1,500 pounds- on the top of this wooden block, which was smaller than the superimposed motor. In support of the statement that the trend of this inclination was toward the north is the fact that the descent of the tracks was in that direction one foot in six. No other cause appears for the sliding off of the motor than this deflected-condition.

We think the judge was in error in nonsuiting the appellant on the ground the evidence failed to show the motor sagged at this particular juncture. With the proof .establishing that such was its condition almost daily, and that no other efficient reason is suggested for the, accident, it was for the jury to pass upon that question. This .would not be permitting the jury to speculate upon what caused the accident, for there were facts which fairly justified the deduction that the accident was due to the sloping of the piston rod and the motor. The burden is insistent upon the plaintiff always to establish that his injuries are due to some specific negligence of the defendant; that negligence, however, may not, in every instance, be susceptible of direct proof by an eye-witness; but, if the facts proved warrant the inference the injuries are attributable to the failure of the defendant to perform his precise duty, then it is the province of the jury to decide whether or not the defendant is chargeable with negligence. (Chisholm v. State, 141 N. Y. 246; Fitzgerald v. New York Central & H. R. R. R. Co., 37 App. Div. 127; Hart v. Hudson River Bridge Co., 80 N. Y. 622.)

It is contended the ease falls within the class where the risk is an obvious one to the employee. The business was. not, of itself, hazardous. If the piston rod remained erect, there was very little danger of the motor falling off. If the machinery was in proper condition, then the risk was the plaintiff’s. It is elementary, however, that the fact he assumed the risk incidental to the business is upon the hypothesis the master performed his duty by providing an adequate appliance and reasonably safe machinery. (Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y. 368; Benzing v. Steinway & Sons, 101 id. 547; Knisley v. Pratt, 148 id. 372, 378.)

The doctrine of obvious risks has never included the danger resulting from inadequate, machinery and appliances, where the defects were known to the master and he failed to remedy them. The duty of the master to exercise reasonable care, both by furnishing suitable machinery and keeping it in repair, is one always in force. (Bailey v. R., W. & O. R. R. Co., 139 N. Y. 302; Galasso v. National Steamship Co., 27 App. Div. 169; Rima v. Rossie Iron Works, 120 N. Y. 433.) Of course, Howard, the superintendent, in the performance of this obligation, was the alter ego of the defendants. (Hankins v. New York, L. E. & W. R. R. Co., 142 N. Y. 416; Bushby v. New York, L. E. & W. R. R. Co., 107 id. 374.)

We cannot say, as matter of law, that the plaintiff should have discovered that the motor tipped forward. He was inexperienced in the use of the jack; his work took him to the bottom of the pit, and he was bending over, working the lever as directed by the employer. He had a right primarily to assume the appliance was in proper repair and in a reasonably safe condition. While an inspection might have apprised him of its condition, yet the short, time of his employment upon it, the fact it had been long in use, as. he knew by casual observation, and his position in the prosecution of his work, are circumstances which made it proper for the jury to decide whether he exercised care commensurate with the situation in which he was placed.

The judgment is reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred, except McLennan, J., dissenting.

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