
    Recka v. The Ocean Steamship Co. of Savannah.
    (New York Common Pleas
    General Term,
    May, 1893.)
    Where implements used in a master’s business arc of a certain kind or condition and the servant knows it, he voluntarily takes the risk resulting from their use.
    In an action to recover for personal inj uries, it appeared that plaintiff, employed by defendant, had been piling cotton bales in tiers on a dock all day until about five o’clock, at which time he hooked one of the hales, and as it was being hoisted, it slipped out of the hooks, and before plaintiff could get from under, as he attempted to do, it fell upon him and caused the injuries complained of. It further appeared by plainr tiff’s testimony that the hooks were too straight, and that when the rope or sling pulled on the edges of the bales, to which it was fastened -to close the hooks, it pressed the body of the hooks against the edge of the bale and that threw out the points and released the bale; that as soon as plaintiff saw the hooks that morning, he thought they were no good and told the foreman so, who told him to go on with his work, which he did up to the time of the accident; and that during the time plaintiff was at work, the hooks missed and slipped so many times on being attached to the bales that he could not count them. Held, that a motion to dismiss the complaint should have been granted. If the hooks were defective in shape and improper for use, plaintiff with knowledge thereof voluntarily took the risk resulting from their use, and he was not required to expose himself to danger by the orders of the foreman.
    Appeal from a judgment in favor of plaintiff, entered-upon a verdict for $1,193.98, and from an order denying defendant’s motion for a new trial. The action was brought to recover damages for personal injuries alleged to have been sustained through the negligence of defendant while plaintiff was engaged in his duty as defendant’s servant.
    Hoadly, Lauterbach & Johnson ( Wm. N. Cohen,, of counsel), for defendant (appellant).
    
      Herbert T. Ketcham, for plaintiff (respondent).
   Daly, Oh. J.

The plaintiff was a longshoreman employed by the defendant, and at the time of the accident was engaged in the work of piling cotton bales in tiers on the dock. The cotton was brought on hand trucks to the pile at which the plaintiff was standing, and his duty was to hook the bales with hooks attached to the hoisting tackle by which they were lifted to the position required. He had been employed all day until five o’clock and had helped to tier several hundred bales. About that hour, he hooked one of the bales, called to the men engaged in hoisting to go ahead, and then drew back-and looked up. • As the bale went up, it slipped out of the hooks, and before the plaintiff could get from under, as he attempted to do, fell upon him and caused the injuries for which he sues.

To explain why this bale which he had hooked should slip out of the hooks and fall, he testified that the hooks were too straight in the body, and when the rope or sling pulled on the edges to which it was fastened to close the hooks, it pressed the body of the hooks against the edge of the bale, and that threw out the points and- released the bale. The complaint alleged that the defendant negligently supplied hooks which were so straight in their length between the rope and the part thereof which was turned, at an angle to said length, and which were so short between said angle and the ends thereof, that the same could not be securely fastened to the said bales.

It appeared from the testimony of the plaintiff that as soon as he saw the hooks that morning he thought they were no good ” and told the foreman so, but the latter told him to go on with his work. He went on working with the hooks all day up to the time of the accident-. Birring that time they missed and slipped so many times when he attached them to bales of cotton that he could not count them; he lost perhaps nearly half the bales he hooked, by the hooks slipping when they were attached to the bales and the attempt was made to hoist, so that the bale was not lifted by the hooks and he had to hook it again. When the bale was in the air he drew a little back, a step, a bit, and watched the bale taken in.

Hpon these facts, the plaintiff claimed that the accident was caused by the negligence of his master in. furnishing implements to work with which were not reasonably safe, and that he himself was free from any negligence contributing to the injury. The learned trial judge thought that a question of fact on both issues was presented for the jury, and denied a motion to dismiss the complaint made at the close of the plaintiff’s case and at the close of the whole evidence; and, the case being submitted to the jury, they found for the plaintiff. It seems clear that the motion to dismiss the complaint should have been granted.

If the hooks were defective in shape, and, therefore, insufficient and improper for the plaintiff to use, the defect was known to the plaintiff and thoroughly understood and appreciated by him, and he, therefore, voluntarily took the risk .resulting from their use. Where implements used in the master’s business are of a certain kind or condition and the servant knows it, he voluntarily takes the risk resulting from their use. Sweeney v. Berlin & Jones Envelope Co., 101 N. Y. 520. The hazard or risk which attaches to the use of the implement was one of the risks which the plaintiff assumed in entering upon the service in which he was engaged; for such hazard or risk was apparent to ordinary observation, and so were the consequences which might result from the use of the defective implement, and no particular skill, judgment or experience was needed to appreciate such consequences.

It is claimed, however, that the plaintiff is relieved from responsibility by the order of the foreman to go on and use the hooks when he complained that they were no good.” The just and fair rule which protects a servant who performs by his master’s express orders, acts which are not inevitably or immediately dangerous (Hawley v. Northern C. Ry. Co., 82 N. Y. 370); or, in obedience to such orders, uses an implement that is obviously defective, but an appreciation of the consequences which might result from the. use of which requires skill or judgment not possessed by an ordinary observer (Davidson v. Cornell, 132 N. Y. 228), is not applicable to this case; for the danger from the use of the hooks was not only apparent but threatening and imminent. The plaintiff saw that the hooks slipped nearly half the time he adjusted them to a bale of cotton, and ordinary intelligence could appreciate the consequences of their slipping when the bale was suspended in the air. The fact that the hooks were insufficient was obvious and the resultant peril plain at a glance, and the plaintiff having voluntarily remained in a position where he must be injured if the accident, which was imminent, occurred, he took the risk of such defect. Shaw v. Sheldon, 103 N. Y. 667.

But the orders of the foreman did not necessarily require the plaintiff to expose himself to danger. In the first place, the management of the hooks was wholly in the plaintiff’s hands. They could be adjusted to the bale so as to lift it safely. The plaintiff had done it hundreds of times that day. Half of the times it slipped off and did not lift the bale, and he then readjusted it, and it performed the required function. I am satisfied from the facts that the hooks were efficient when properly handled and the plaintiff was responsible for the manner of using them and cannot recover for the consequences of his own carelessness in that respect. In the next place, the plaintiff was not required by the orders of the foreman to stand under the bale when it ascended. The excuse is made that he was crowded by the trucks bringing the cotton and returning. The truckmen placed the trucks where he required,' them for hooking, and the evidence does not show that he-could not give directions to the truckmen which would have-left him room to move out of danger. The bale was not lifted until he gave the order, and it would seem that he had the time and opportunity to place himself out of danger. Reorders of the foreman coerced him in this regard, and he is not shielded from responsibility on account of being required to use the hooks.

The judgment should be reversed and a new trial granted., with costs to abide event.

Bischoff and Pbyob, JJ., concur.

Judgment reversed, new trial ordered.  