
    Michael Rosa, Appellant, v. Bertha Volkening and Otto Volkening, Respondents.
    
      Negligence — injury from the falling of a derrick on an employee familiar with its condition.
    
    The laborers in charge of a three-legged derrick used in hoisting timbers during the construction of a building attempted to hoist a timber which was fastened to the chain of the derrick a greater distance from the end of the timber than was usual, and in such a manner as to draw the timber forward and throw an excessive weight upon the derrick, causing it to topple over and fall upon another employee who was engaged in wheeling concrete into the building and had for some time worked upon and around the derrick.
    
      Held, that the employers were not liable to the injured workman for the injuries sustained by him;
    That the fact that the derrick was too light to accomplish the work which the laborers attempted tó do with it, or that it was not supplied with guy ropes, was not sufficient to charge the employers with liability.
    Hirschbérg and Jenés, JJ., dissented.
    Appeal by the plaintiffi Michael Rosa, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 15th day of January, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term, and also from an order entered in said clerk’s office on the 22d day of December, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Franklin Pierce, for the appellant.
    
      Albert E. Lamb, for the respondents.
   Woodward, J.:

The complaint sets forth a cause of action against the defendants for damages resulting from personal injuries sustained by the plaintiff by the falling of a derrick which was being used to elevate timbers for the construction of two buildings on Mills street, Astoria, Queens county. . At the close of the plaintiff’s evidence a motion was made to dismiss the complaint on the grounds that the plaintiff had failed to show that there was a partnership existing between the defendants or that there were facts which would make either of them liable; that there was no evidence to show that the plaintiff was the employee of the defendants; that there was no act proved by which either one of the defendants was shown to have contributed in any way to the injury of the plaintiff, and that the cause of the accident was the misconduct and the negligence of fellow-servants. The motion was granted and the plaintiff appeals from the judgment entered and from the order denying a motion for a new trial.

It will be conceded that the plaintiff, having been nonsuited, is entitled to the benefit of every fact that the jury could have found from the evidence and all the inferences warranted thereby, but we are of the opinion that this will not be of use to him on this appeal as we are satisfied that he has failed to establish liability upon the part of the defendants under any view of the evidence which the jury might properly take. It is extremely doubtful if the plaintiff has shown the defendants to have been connected with the building enterprise, but in the conclusion we have reached it is not necessary to determine this question. The accident, through which the plaintiff claims, was the result of the carelessness of a fellow-servant, and, assuming the defendants to have been responsible for the hiring of the employees, there is no evidence under which they could be held liable.

The allegation in the complaint is that on the occasion of the accident the plaintiff was in the employ of the defendants, in common' with others, “ engaged in wheeling dirt in and about a building being erected by said ” defendants, and that at said time the said defendants owed to this plaintiff the duty of furnishing to him a safe place in which to work ; that in violation of said duty, the defendants negligently furnished to him an unsafe place in which to work, in that therein was a defective derrick used for the lifting of beams in the erection of said house as aforesaid; that said derrick was defective in that it was not supplied with sufficient guy ropes and had defective stays, and was too light for the work for which it was being used, and was out of repair and incapable of handling the beams for the hoisting of which it was being used, and that by reason of said defects and defendants’ negligence it rendered the place afforded by the defendants to the plaintiff in which to work, an unsafe and. dangerous place; and by reason of the fact that the defendants did ■ not furnish servants to give notice to the plaintiff when said derrick was to be used, the use of the same rendered said place dangerous. That on the first day of .October, 1898, at the place aforesaid, and while this plaintiff was in the employ of the defendants and performing his duties, and without any negligence upon his part, the said derrick gave way because of said defects and because of the defendants’ said negligence, and the structure thereof fell upon this plaintiff, breaking his left leg,” etc.

The evidence establishes that the plaintiff was hired by one Phelan, who appears to have been the contractor in the construction of the building, and that the plaintiff was engaged in wheeling concrete from a dock near at hand to the building, and doing such other work in connection with the construction as he was directed to do by those in charge of the work. In the course of the erection of the building it was found necessary to use a derrick, which was used to hoist timbers' into position, and in raising them into place it was necessary to give the timbers a forward movement at the same time that they were being elevated. On the day of the accident, it appears that the laborers, in making use of the derrick, a crude, three-legged affair, with a drum operated by levers, made a hitch upon a pieee of timber, fastening the rope or chain back a greater distance from the end than was usual, and in such a manner that the dragging- of the timber forward threw an excessive weight upon the * derrick, and it toppled over, falling upon the plaintiff, causing the injuries for which he seeks recovery. -

The derrick had been in use upon these premises some two or three weeks. The plaintiff had worked upon and around it, and any defects in its-construction were as obvious to the plaintiff as to- the-defendants or to the other employers, whoever they may have been. (Watson v. Duncan, 46 App. Div. 298, 300.) The place furnished for the plaintiff to work was in and about the building which was being constructed, and it was not made dangerous by the presence of the derrick, but by the method of operating it; and solely on-account of the manner of performing the work by fellow-servants, the-accident happened, and happened in the course of the performance of the very kind- and character of the work which the plaintiff took the risk of by accepting employment. (Yaw v. Whitmore, 37 App. Div. 98, 102, and authority there cited.)

The fact that the derrick which was used was too light tó accomplish the work which was attempted to be done with it, or that it was not supplied with guy ropes, which it may now be seen would have prevented the accident, is not sufficient to charge the defendants with negligence. They were not required to furnish the best or most modern appliances to the employees, nor to conduct their business in the latest or most approved manner. It is sufficient if they conducted their business in a reasonably safe manner and in accordance with common custom. (Bell v. Consolidated Gas, etc., Company, 36 App. Div. 242, 246.)

The evidence shows that this derrick was one commonly used for hoisting materials in work of this general character. There was no evidence that any one had ever seen guy ropes used in connection with such a derrick, and there is no claim that the derrick broke down by reason of any of the alleged defects. It merely tipped over because the fellow-employees of the plaintiff undertook to lift and move forward á stick of timber which was too heavy for the derrick. It was pulled over upon the plaintiff by the dragging weight which was put upon it, and none of the authorities sustain the contention that with respect to a danger which the servant knows as well as the master, he is absolved from the charge of contributory negligence if he proceeds to ignore the danger, even though he does so upon the assurance of the master that at some future time the defect may be repaired. (McCarthy v. Washburn, 42 App. Div. 252, 254; Watson v. Duncan, supra; Swain v. Brooklyn Alcatraz Asphalt Co., 57 App. Div. 56, 59, and authorities there cited.)

This is not a case involving the use of complicated machinery there was no inherent defect in the derrick and its operation could be easily understood. The fact that it was not heavy enough to do all that might be demanded of it was as obvious to the plaintiff as to any one connected with the work. We think, under the rule recognized in Spencer v. Worthington (44 App. Div. 496, 499, 500), that there can be no doubt that the plaintiff was properly nonsuited.

The judgment and order appealed from should be affirmed, with costs.

Goodrich, P. J., and Sewell, J., concurred; Hirschberg and Jenks, JJ., dissented.

Judgment and order affirmed, with costs.  