
    Martin McGrath, Resp’t, v. William J. Walsh, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 1, 1889.)
    
    1. Master and servant—When master not liable for injuries to SERVANT.
    A servant cannot recover of his employers for injuries received by him from a defect in a ladder constantly used by him at his work, where the servant has the same opportunity as the employer of observing a defect in. the ladder
    2. Same—Master not a guarantor—Duty of master.
    A master is not a guarantor or insurer of the absolute safety of tools, or appliances; he is only bound to exercise reasonable care in their selection.
    Appeal from a judgment in favor of plaintiff entered upon a verdict of a jury.
    
      Daniel F. Mahony, for app’lt; Smith & White, for resp’t.
   Larremore, C. J.

The defendants were engaged in erecting a building in One Hundred and Twenty-fifth street in the city of Hew York, and plaintiff was there employed by them as a hod carrier. On the 20th day of May, 1887, he was ordered by the foreman to carry to one of the upper floors of such uncompleted building a pail of water for use in tempering mortar. He started to ascend a ladder provided and erected by defendants for the use of their employees, having the pail of water in one hand, and he alleges that when near the top thereof a rung of said ladder, upon which he stepped, turned under his foot, whereby he was precipitated to the cellar, sustaining great and incurable injury. His claim for damages is founded upon the allegation that defendants furnished a defective ladder. It is said by Ruger, C. J., in Cahill v. Hilton (106 N. Y., 512), that:

“ A ladder like a spade or hoe, is an implement of simple structure, presenting no complicated question of power, motion or construction, and intelligible in all of its parts to the dullest intellect. No reason can be perceived why the plaintiff, brought into daily contact with the tools used by him, as he was, should not be held chargeable equally with the defendants, with knowledge of their imperfections.”

It appears that the plaintiff in the case at bar for a day and a half immediately before the accident, as well as for a longer period previous.to such time, was wurking upon said house in One Hundred and Twenty-fifth street, and ascending and descending this identical ladder. He testifies:

‘1 The last time I was working previous to this unlucky day and a half, there was a ladder there. I went up and' down the ladder. It was the same ladder from which I fell. It was a two-story ladder. I was accustomed to go up. and down that ladder many and many a time before/ My trips up and down that ladder would average twenty times an hour. * * * I never felt anything the matter with the ladder before this happened.”

The effect of this testimony is certainly to establish either that there was no original defect in the ladder discoverable upon inspection, or that, if such defect existed, plaintiff elected to go on working upon it with knowledge thereof. Taking either horn of this dilemma, I think the defendants were entitled to judgment. If there was any patent ■defect, the rule laid down in Cahill v. Hilton (supra) makes it incumbent upon the servant equally as upon the master to examine the ladder and discover the same; and failure to make such examination and discovery, on the servant’s part would, therefore, be contributory negligence. If, on the other hand, the alleged defect in the construction of the ladder was an occult one, which could not have been discovered by inspection, the master was not guilty of negligence. A "master is not a guarantor or insurer of the .absolute safety of tools or appliances ; he is only bound to ■exercise reasonable care in their selection. Painton v. N. C. Railway Co., 83 N. Y., 7; Lee v. Barrow Steamship Co., 6 N. Y. State Rep., 285.

According to the testimony of plaintiff’s witnesses and of some of the witnesses for the defense, two or three of the rungs of said ladder were loose at the time of the accident. If this were the fact, plaintiff was clearly negligent in continuing the use of the ladder after he had discovered that such rungs would turn. He must have made such discovery in his use thereof of a day and a half immediately before the accident, unless the looseness came about suddenly from some hidden cause and without any previous warning ; and in this latter event no negligence could be imputed to the defendants, as it nowhere appears that they were careless in the original purchase and selection of the ladder.

It follows that in any view of the evidence the complaint should have been dismissed, and the judgment must be reversed and a new trial ordered, with costs to abide the event.

Vah Hoeseh, J., concurs.  