
    James Miles, Respondent, v. Terry & Tench Company, Appellant.
    First Department,
    March 8, 1912.
    Negligence — injury hy fall of derrick boom — accident caused by failure to inspect — erroneous charge —improper use of derrick — appeal — new trial — submission of case on erroneous theory.
    Where personal injury caused by the boom of a derrick rented to the plaintiff’s master by the defendant, who furnished the engineer and another man for operating it was caused not by the negligent operation of the appliance, but, on the contrary, was due to a failure to inspect the appliance which might or might not have disclosed the fact that a key in the braking apparatus had worked loose, it is error to allow the jtiry to find the defendant negligent in failing to exercise due care in using the derrick, for the only basis for negligence was the failure to inspect and repair.
    For such error a new trial will be granted although there is no exception to the charge, for the jury might have found that a proper inspection would not have revealed the looseness of the key.
    Appeal by the defendant, the Terry & Tench Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of April, 1911, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    
      James B. Henney [Owen F. Hughes with him on the brief], for the appellant.
    
      Cornelius J. Earley [S. J. Bischoff with him on the brief], for the respondent.
   Laughlin, J.:

This action is brought to recover damages for personal injuries sustained by plaintiff on the 8th day of November, 1908, while in the employ of one Bonner, and in the performance of duty, giving signals to an engineer in charge of a hoisting engine on a floating derrick used in unloading earth from a scow and dumping it for filling, in the construction of a dock at Oak Point, on the East river, at the foot of East One Hundred and Sixty-second street. One McPherson was interested with Bonner in the work and in the profits. The derrick and hoisting apparatus were owned by defendant and rented to Bonner under a contract by which defendant also furnished the engineer and another man, and received twenty or twenty-two dollars per day for the use of the scow, hoisting engine and derrick, and for the services of the two men. Bonner provided the bucket which was used to hoist the earth, and furnished the coal to run the engine. Immediately preceding the accident plaintiff signaled the engineer to raise the bucket and swing it over to the dumping ground, and this signal having been obeyed, he gave another signal .at the proper time to empty the bucket. The engineer attempted to obey that signal by applying a friction brake, but the lever which controlled the brake failed to respond, owing to the fact that a key which held the lever of the friction brake to the shaft had worked loose and slipped out. This failure of the machinery to operate properly and the efforts of the engineer, in the emergency, to control it, resulted in the bending or breaking of the boom of the derrick, causing it to strike and injure plaintiff. It was the duty of the engineer to inspect the machinery and appliances, including said key. The evidence tends to show that the key became loose and worked out gradually, and would have warranted the jury in finding that by proper inspection it would have been discovered that it was working loose sufficiently long before the accident to have afforded reasonable time for repairs. The accident occurred on a Sunday morning, after the machinery had been in operation only a few minutes. The issues became somewhat confused by an effort, on the part of the defendant, to' show that the work was prosecuted on Sunday without its knowledge or consent, and pursuant to an arrangement between its engineer and Bonner and McPherson, by which the latter agreed to pay the engineer for the overtime. This evidence does not purport to show an agreement made with the engineer for the use of the hoisting engine and appliances for Sunday, and it is fairly to be inferred that it was contemplated that the defendant should be paid the same as for the use of the machinery and services of its employees on other days, hut that there would be an additional charge referred to as pay for overtime, on account of working Sunday, and that McPherson had agreed to pay the defendant’s engineer for all charges for overtime on the work. It is scarcely susceptible of the construction that the engineer was to he fully paid by McPherson for the services rendered on Sunday. That evidence, however, is not very material, for the reason that the accident was not caused by negligent operation of the hoisting machinery and appliances on the morning of the accident, which would give rise to a question as to whether the engineer was, in the circumstances, still to be regarded as in the employ of the defendant, or whether his services were taken over by Bonner and McPherson for that day, under the ruling of Higgins v. Western Union Telegraph Co. (156 N. Y. 75) and kindred authorities. The negligence which caused the accident was failure to properly inspect the machinery and appliances. That duty devolved on the engineer, and in performing it he was acting for the defendant, and the evidence tends to show that a proper inspection on Saturday would have disclosed the fact that the key was out or was working loose. The case, however, was not submitted to the jury on that theory, although there is no attempt to sustain the verdict on any other theory. The learned trial court evidently was of opinion that since the plaintiff was not in the employ of the defendant, it could not be said that the defendant owed him any duty to inspect the machinery and appliances. The court in the charge drew attention to the evidence with respect to inspection, and counsel for defendant evidently understood the court to instruct the jury that it was the duty of the defendant to inspect the machinery, and he took an exception to the charge on that point and expressly stated that it was taken upon that theory, whereupon the court stated that the jury had not been instructed that there was any duty on the part of defendant to inspect the machinery, and that the question for the jury to determine was whether the defendant exercised such care and caution “in using that instrumentality which a prudent man would consider necessary under all the circumstances, of the case to prevent ” harm to one in plaintiff’s position, which is in substance the same as the main charge, with the exception of the reference to the evidence relating to inspection. This was the last instruction given to the jury on the subject, and it is evident that the jury were permitted to predicate negligence, not upon a failure to inspect and repair, which was the only failure of duty, but upon the failure to exercise proper care in using the machinery and appliances, or in furnishing them originally, and, although the point is not presented by exception, we are of opinion that there should be a new trial, for the reason that the jury might have found that proper inspecion would not have revealed the looseness of the key.

It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

McLaughlin, Clarke and Miller, JJ., concurred.

Ingraham, P. J.:

I concur in result on the ground that the finding that the defendant was negligent is against the evidence.

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