
    (86 Hun, 37.)
    SCHERER v. HOLLEY MANUF’G CO
    (Supreme Court, General Term, Fifth Department.
    April 12, 1895.)
    1. Master and Servant—Vice Principal.
    The repair of machinery which has become out of order is within the duty of a master, and a servant who is directed to do it represents the master in. the performance thereof, whatever his grade in the general service is.
    55. Same—Proof of Negligence.
    Where plaintiff was injured by defects in an implement which had been repaired a few days before, and the workmen who made the repairs testified that they put the implement in a proper condition, but there was no evidence that anything was done or happened after the making of the repairs to produce the. defect which caused the accident, the question whether the implement was properly repaired should have been submitted to the jury.
    Appeal from circuit court, Niagara county.
    Action by Peter Scherer against Holley Manufacturing Company for personal injuries. From a judgment entered on a verdict in favor of defendant, directed by the court, and from an order denying a motion for a new trial, plaintiff appeals.
    Reversed.
    Argued before DWIGHT, P. J., and LEWIS and BRADLEY, JJ.
    Wallace Thayer, for appellant.
    A. K. Potter, for respondent.
   BRADLEY, J.

The business of the defendant in the operation of its foundry and machine shop at Lockport, N. Y., has for many years been the manufacture of pumping engines and pumps for waterworks. The plaintiff, employed by the defendant as laborer in the molding department, was on June 30, 1892, injured by molten iron thrown out of a ladle or bucket suspended from a crane. The charge is that the cause was a defective condition of the apparatus attributable to the negligence of the defendant. The method of conveying melted iron from the furnace to the place of molding the castings was in a large iron ladle, by means of a steam crane or derrick. The bail upon which the ladle is hung is attached on two opposite sides to a trunnion a little below the perpendicular center of the ladle, so as to permit it to be turned with very little force. In fact it would not remain upright when suspended, unless held so by means of some appliance. To accomplish this, there is a gear or cogwheel firmly keyed to the ladle, and a worm attached to the bail with a clamp, held to its place by screws or bolts. The cogs or teeth of the wheel and the thread of the worm, when in position, interlock. In the proper adjustment of the apparatus is the safety of transporting the melted ir'on from the furnace to the molds. By means of a lever or crank, the worm may be turned, and thus the gear wheel is correspondingly moved, turning the ladle. In that manner, as occasion requires, the ladle may be turned and held at any angle, and restored to its upright position. A few days before the day in question the gear wheel was broken, and then a new one was put in its place. To do this, it was also necessary to loosen the clasp that held the worm to its place; and after it was repaired the ladle was taken to the cupola of the furnace, filled with 9,000 pounds of molten iron, and when it swung off it was tipped slightly, and the refuse substance on the surface of its contents skimmed off by the workman having it in charge. Then it was observed by him that the thread of the worm did not interlap with the teeth of the cogwheel. The man at the lever was unable to bring them together, and as the consequence the ladle necessarily tipped over, spilling the contents, resulting in a serious permanent injury to the plaintiff. • While the plaintiff assumed the ordinary hazards incident to the service in which he entered, the defendant owed the plaintiff the duty that he should not be subjected to perils arising from want of reasonable care in furnishing suitable or safe implements, machinery, and appliances in and pertaining to the business in which he was employed. What is reasonable cafe in a given case is dependent, more or less, upon circumstances. And the burden is with the party charging it to prove negligence. The mere fact that he has suffered injury by reason of defective machinery does not raise the presumption of negligence of the employer. Nor is the latter required to furnish the very best known appliances for the service. Nor does the master absolutely undertake for their sufficiency or safety. As has been suggested, he is in that respect required to use reasonable care, which may be defined as such care as a prudent man, having in view their suitableness and safety, would use in providing the appliances, if he personally were to be exposed to all the perils which might arise from their use in the service for which they were •designed. Devlin v. Smith, 89 N. Y. 470; Burke v. Witherbee, 98 N. Y. 562; Stringham v. Hilton, 111 N. Y. 188, 18 N. E. 870; Harley v. Manufacturing Co., 142 N. Y. 31, 36 N. E. 813. The device of the gear wheel and worm had been in use many years in the defendant’s foundry with success, and without any accident prior to the time in question, and, so far as appears, a similar apparatus is in use in other foundries, where large castings are molded. There was nothing in the material, method of construction, or operation of it, when properly adjusted, to permit imputation of want of due care on the part of the defendant in the application of it to the purpose for which it was used. The question is whether or not the conclusion is by the evidence permitted that the defendant was chargeable with negligence in not properly restoring the apparatus to a condition of safety for use after the gear wheel was broken. The importance of having the apparatus properly adjusted is apparent for the protection of the employés as well as for the good of the service, when the ladle is swung five or six feet above the ground floor in passing from the furnace to the place of deposit of its contents. This accident occurred the first time the ladle was used after the new wheel was attached to it, and was the result of the first attempt to incline it in suspension by the use of the worm; and the evidence tends to prove that the failure of the apparatus to work properly was caused by the worm rising or slipping upon the bail, and thus taking it out of cog with the wheel, otherwise there could have been no danger apprehended, and that this could not have happened; if the bolts of the clasp which held the worm to its place had been properly screwed up, appears by the evidence. The only way of accounting for the slipping up of the worm on the bail of the ladle, and thus separating the thread of it from the cogs of the wheel, was in the looseness of those bolts or screws. Yet the testimony of the machinist who did the work and of his assistant is that the bolts were screwTed up tight, and the foreman also testified that he saw them screwing up the bolts. If this was well done, as those who did it say it was, then something must have occurred shortly after to weaken the firmness of the attachment of the worm to the bail at its proper place. But the evidence does not warrant the inference that anything was done or happened to the apparatus after its repair was completed, and before the accident to loosen the clasp of the worm to the bail. The strain upon the fixture in the operation of the ladle is said to be but slight, And in this instance the only use made of the apparatus, other than to hold the ladle upright in the start, was to tip it slightly for skimming, and thereupon the worm failed to perform the service for which it was intended. This condition of it the jury were permitted to find was not consistent with the evidence of those witnesses that the bolts were screwed up tightly or properly, and, in view of their relation as employés to the defendant at that time, the question whether or not the bolts were soi screwed up was one of fact for the jury. Dean v. Van Nostrand (N. Y.) 4 N. E. 134; Elwood v. Telegraph Co., 45 N. Y. 549; Volkmar v. Railway Co., 134 N. Y. 418, 31 N. E. 870; Seybolt v. Railroad Co., 95 N. Y. 562-567. As the duty was with the defendant to furnish and maintain suitable instrumentalities for the service, and to supply a safe place for its employés to do their work, it is responsible to the plaintiff for his injuries, if they resulted solely from the defendant’s failure to exercise reasonable care in that respect. The reparation and adjustment of the apparatus attached to the ladle for its use came within the duty which the defendant assumed to perform, and the servant, who did it, whatever may have been his grade in the general service, represented the defendant, and for the consequences of his negligence in the performance of it the defendant is responsible. Pantzar v. Manufacturing Co., 99 N. Y. 368, 2 N. E. 24; Busby v. Railroad Co., 107 N. Y. 374, 14 N. E. 407; Kranz v. Railroad Co., 125 N. Y. 1, 25 N. E. 206; Hankins v. Railroad Co., 142 N. Y. 416, 37 N. E. 466; Wannamaker v. City of Rochester (Sup.) 17 N. Y. Supp. 321; Id., 137 N. Y. 529, 33 N. E. 336. The view taken of the evidence is that it was such as to permit the jury to find that the plaintiff’s injury was occasioned by the failure of the person, who sought to adjust the apparatus, to screw up the bolts sufficiently to hold the worm to its place, and, if so, that the failure to do it was attributable to want of reasonable care on his part, for which the defendant was responsible, and that those questions should have been submitted to the jury. The inquiry would also involve the consideration of the question whether a reasonably practical test of the structure was applied to it after the reparation, and before it was put into the service. The circumstances under which the thread of the worm left the cogs of the gear wheel, resulting in the unfortunate event, seem to have been such as to permit the inference that the worm was so loosely clasped to the bail of the ladle that it had substantially nothing other than its own gravity to hold it to its place. The evidence warranted the conclusion that the plaintiff was free from contributory "negligence, which was also a question of fact for the jury. The judgment and order should be reversed, and a new trial granted, costs to abide the event. All concur.  