
    Joseph J. Spencer, Respondent, v. Henry R. Worthington, Appellant.
    
      .Negligence—assumption by a mechanic of the danger involved in the use of a short-spouted instead of a long-spouted can, for oiling a machine — use of short-spouted .cams in other establishments.
    
    .A mechanic, aware of whatever danger was involved in the -use, for oiling a machine, of á short-spouted can, not -finding a can with a long spout which he had. been accustomed to use, applied to the foreman, who gave him a short-spouted can, and on his protesting against' its use promised to get him one with a long spout, which he did not do. After using the., short-spouted can for some three weeks the mechanic was injured hy the spout being bent over on his finger.
    'In an action brought hy him against his employer to recover damages for the injuries thus sustained,
    
      .Held, that the plaintiff assumed the risk incident to the use of the short-spouted oil can, and that a judgment entered upon a verdict in his favor should be, reversed.
    
      ■Quwe, whether in view of the evidence that all the mechanics in the defendant’s establishment, with the exception of the plaintiff, used -the short-spouted oil can, and of the absence of evidence that the long-spouted can was used in similar establishments, it was not error for the court to submit to the jury the question whether it was incumbent upon the defendant to supply the plaintiff with a long-spouted can.
    
      Appeal by the defendant, Henry R. Worthington, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings, on the 10th day of March, 1899, upon the verdict of a jury for $1,115, and also from an order entered in said clerk’s office on the 10th day of March, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      Herbert C. Smyth [Edwin A. Jones with him on the brief], for the appellant.
    
      Henry A. Powell, for the respondent.
   Cullen, J.:

This action is servant against master, to recover damages for personal injuries. The defendant was engaged in the manufacture of pumps and hydraulic machinery. The plaintiff had been in the employ of the defendant in that business for some nine years previous to the accident. His work was in the operation of tools and machines used to cut metal. At the time of .the accident it became necessary for him to oil a tool held by a ram which was moved upward and downward with great frequency. The spout of the oil can used by the plaintiff for this purpose was caught by the ram and bent over upon his finger, injuring it so as to require its amputation. The only charge of negligence on the defendant’s part upon which the cause was submitted to the jury was that the oil can should have had a long spout instead of a short one. The plaintiff testified that until about three weeks before the accident he had always used a can with a long spout, so as to avoid the danger of his hand being caught in any of the machines; that at this time he left the can with the long spout at a machine which he had been operating, from which it was carried away by some person, and he was unable to recover it. He further testified that he thereupon applied to the foreman for another, can.; that there was no can with a long spout in the storeroom, and hence he was compelled to take a can with a short spout; that he protested several times against the use of such a can and that the foreman promised to get another can with a long spout. There was no dispute as to how the accident occurred. The foreman to whom the plaintiff claims to have applied for a can with a long spout had left the defendant’s employ, and the only witness on its behalf was the superintendent, who testified to finding a can with a long spout, on the machine immediately after. the occurrence,of the accident. This witness further testified that all the' workmen in the shop or machine works, with the exception of the plaintiff, used the short-spout can.

The jury having rendered a verdict for the plaintiff, we must assume that he complained to the foreman of being compelled to use thd short-spout can, and that the foreman promised to replace it with one having a long spout. There is no question in the case as to the extent of the plaintiff’s knowledge of the dangers arising from the use of the short-spout can. He testified: “ Whatever danger there was .in using a short-spouted can I knew myself.” In fact the plaintiff’s testimony was the only evidence on which the jury , could find that the use of the short-spout can was dangerous. We are not entirely clear that this testimony was sufficient for the purpose. The evidence of the foreman that every workman in the shop, other than the plaintiff, used the short-spout can, was nót con-ti'adicted, nor was there any evidence that the long-spout can was adopted and used in similar establishments. The master was not bound to furnish .the best-known appliances, but such only as were reasonably safe and suitable for the work. Of this rule the learned trial court in its charge gave the defendant the full benefit; but if the can furnished to the plaintiff was the appliance ordinarily used for. the purpose, we very much doubt whether the question should have been left to the jury at all. However this may be, the question still, remains whether the plaintiff can be heard to complain of the insufficient or defective character of the appliance which he used.

It is true that in many cases the fact that an employee knows of-the defective character of the appliances furnished by the master will not preclude the former frora recovering for injuries occasioned by such defects, In the use of complicated machinery it may well be that a workman is entirely aware that there is something defective or out of repair, and yet is ignorant of the danger or its extent to which he is subjected by such defect or want of repair. He has the right to rely on the assumption that the master will fulfill his legal obligations to him, that is, use reasonable care to guard him from the dangers of unsafe or defective appliances. Especially is-this the case where the master assures him of his safety. Coneededly in the case before us the character of the appliance and the-, danger from its use were obvious to the plaintiff. It, therefore,, does not fall within? that class where the servant is entitled to rely on the superior knowledge of his master, nor does the learned counsel rest his claim on that ground. He asserts the doctrine that though the danger was obvious, and though the risk was entirely appreciated by the plaintiff, still the latter was justified in continuing his work and could hold the master liable for any injury resulting from such dangerous condition; provided a jury should find that the danger was not so great that it was foolhardy to encounter it. Whether this doctrine as broadly as contended for" can he upheld as the law in this State in any case except one of emergency or of necessity to save life or property, is qnestionaírle; it is liot applicable to this occurrence. In Laning v. N. Y. C. R. R. Co. (49 N. Y. 521) the plaintiff knew that the fellow-servant for whose negligence the defendant was held liable was intoxicated, but he did not-know the manner in which the scaffold was built or that there was any defect in'it.- In Hawley v. Northern Central Railway Co. (82 N. Y. 370) the plaintiff, an engineer, had a general knowledge that the railroad was out of repair, but he also knew that passengers and freight were continually being transported over it, and he had no knowledge of the particular defect which caused his injury. In neither case can the danger which occasioned his injury be said to have been obvious. In Marsh v. Chickering (101 N. Y. 396) the plaintiff was injured by the slipping of a ladder which he claimed was defective because it was not provided with spikes; the master had promised that spikes should be furnished. It was held that the plaintiff assumed the risk arising from the use of the ladder. In Sweeney v. Berlin & Jones Envelope Co. (101 N. Y. 520) the same "rule was held where the servant was injured in using a press and the master had promised to provide a clutch. In Hannigan v. Smith (28 App. Div. 176) the plaintiff, a hod carrier, was injured by a brick falling from above. He had complained that the place whence the brick fell was insecure and the master had promised to place a protection. It was held that as the danger was obvious and the plaintiff knew of it he assumed the. risk, despite the promise of • the master. The learned counsel for the respondent, drom an elaborate analysis of the decided cases in this State, deduces the rule that where only simple appliances- are used, the servant assumes the risk of their character or condition so far as they are known to . him, notwithstanding any promise of the master; but where machinery is used, the promise of the master to repair defects relieves the servant from assuming the risk. We do not see. on what principle such a rule can well stand. There is a great difference between the use of a steam boiler and that of a step ladder. A servant exercising due care would probably always know when a step ladder was likely to break down, while he might not know when a boiler was likely to blow up. Therefore, there is a marked distinction between a boiler and a step ladder so far as knowledge of danger and consequent assumption of risk should be' imputed to the servant. But when, because the servant is an expert or for other reasons, his knowledge of the danger arising from the use of the boiler is just as great as that which an ordinary servant would possess in the use of a step ladder, we do not see on what ground any distinction can be drawn between the two cases. This case, however, does not present the use of complicated machinery. There was no defect in the machine on which the plaintiff was at work. The danger to be avoided was that his hands or his can might be caught by the rain. The appliance of which he complains is the can itself, and the danger from using a short-spout can seems to be entirely similar to that in the use of the spikeless ladder in the Marsh case.

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

All concurred.

Judgment and order reversed and new trial granted, costs to, abide the event.  