
    Mike Schultz, Respondent, v. The Barber Asphalt Paving Company, Appellant.
    Second Department,
    June 18, 1908.
    Master and ■ servant — negligence — injury by hoist — complaint—evidence of negligence not alleged—subsequent precautions.
    Under a complaint which alleges that the defendant was negligent in carelessly operating a hoisting machine so that the plaintiff without fault or negligence on his part was struck by materials falling therefrom, it is error to admit evidence that the accident happened because of the defective and unsafe condition of the apparatus and to charge that plaintiff may recover upon that ground. It is also reversible error to admit evidence that immediately following the injury a blacksmith in the defendant’s employ was seen repairing the machine.
    Appeal by the defendant, The Barber Asphalt Paving Company, from a judgment of the County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of said county on the 13th day of November, 1907, upon'the verdict of a jury for $275, and also from an order entered in said clerk’s office on the 1st day of November, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      Knowlton Durham [Frank Verner Johnson with him on the brief], for the appellant.
    
      William A. De Groot, for the respondent.
   Rich, J.:

In this action, which is brought to recover for personal injuries alleged to have been sustained through the negligence of the^defend- ‘ ant, the sole allegation of the cbmplaint as to such negligence is:' “ VI. That while this plaintiff was so engaged, the defendant, its agents, servants or employees so negligently and carelessly operated said hoisting apparatus that, without fault or negligence on his part; this plaintiff was struck upon the head and back- by large and heavy falling chunks, or blocks, or portions of asphalt.”

■The plaintiff was working in the hold of a vessel filling buckets or tubs with asphalt which, when filled, were hoisted through the hatchway and dumped outside the vessel. There seem to have been two buckets connected with the hoisting apparatus, and while the one filled was being hoisted out of the hold the other was being filled by plaintiff. The record is barren of evidence showing any negligence on the part of those employed in. operating the hoisting apparatus, but the learned trial court admitted evidence, o-ver. the defendant’s objection and exception, tending to show that the accident happened because of the defective and unsafe condition of the bucket itself containing the asphalt. The jury were charged that the law “ requires that an employer of Jabor shall engage competent supervision, competent and reasonable appliances, safe appliances. That is a duty that an employer owes to the employee,-and if -this defendant has failed in that duty, this last duty that' I have men-' tioned, toward this plaintiff, and he himself was free from any negligence which contributed to his injuries,” a recovery was justified. Ho duty had been mentioned by the learned trial justice in his charge until he made use of the language quoted, so that the “ last- duty ” to which he referred was that of furnishing. safe appliances.” In other words, the jury were instructed that if the defendant did not furnish safe appliances, if "the injury was sustained, because of the defective and unsafe condition of the bucket, the plaintiff, if free from negligence contributing to the accident, was .entitled to their verdict. Counsel for the defendant, after excepting to this charge, asked the court to charge “ that there is no failure alleged in the complaint to supply safe appliances, and no allegations in the complaint that there was any defective machinery, or buckets, and that, therefore, if the jury finds there was* a -defect the plaintiff cannot recover in this case.” The request was declined and the defendant excepted. The further request was made “ to charge the jury that they must disregard all evidence introduced by the plaintiff of any defect in .the bucket,” which was refused and an exception taken. These exceptions present reversible error. The plaintiff failed to establish the cause of action alleged, and has been permitted to recover upon one not alleged.

There is another reason why this judgment must be reversed. The trial court permitted evidence to be given over defendant’s objection and exception that after the injury and immediately following it a blacksmith in defendant’s employ was seen repairing the bucket. • This evidence was the only proof made, aside from the happening of the accident itself, of any negligence on the part of defendant, and the only inference deducible. from it was that the bucket in question was defective and unsafe at the time of the accident and was immediately thereafter repaired and made safe. This class of evidence has been repeatedly condemned by the courts, and was so. prejudicial of itself as .to require a reversal. (Burns v. Crow, 123 App. Div. 251; 107 N. Y. Supp. 944; Getty v. Town of Hamlin, 127 N. Y. 636; Clapper v. Town of Waterford, 131 id. 382; Mackey v. City of New York, 121 App. Div. 473; Wren v. Kennedy Valve Mfg, Co., 122 id. 289.)

The judgment and order must be reversed and a new trial ordered, costs to abide the event.

Jenks, Hooker, Gaynor and Miller, JJ., concurred.

Judgment and order of the County Court of Queens county reversed and new trial ordered, costs to abide the event.  