
    Alexander Smith, Respondent, v. The Manhattan Railway Co., Appellant.
    (Supreme Court, Appellate Term,
    October, 1905.)
    Master and servant — Master’s liability for injury to servant — Master's duty in furnishing tools — Risk assumed by servant — Evidence — Basis of opinion — Hypothetical question based on facts unsupported by evidence.
    Where the plaintiff, who had been a member of a repair gang of an electric elevated railway company for six months, was given an iron shovel and told to clear the snow from the ties but was not instructed to do anything which necessitated contact with, or dangerous proximity to, the third rail, which he knew was heavily charged with electricity, and he is injured in consequence of so laying down his shovel that it made a short circuit between the third rail and a projecting bolt, of which he also had knowledge, the defendant cannot be held chargeable with negligence in providing the iron shovel, instead of a wooden one, as plaintiff must be held to have assumed the risks attendant upon the work.
    Where plaintiff testifies that pieces of molten iron flew into his eye and the only other testimony upon the subject was that of his physician who took some particles out of the eye but could not say whether they were lead, iron or dirt, permitting an expert medical witness to answer hypothetical questions, involving the assumption that particles of molten lead had gone into the plaintiff’s eye, is error for which a judgment in plaintiff’s favor will be reversed and a new trial granted.
    Appeal by the defendant from a judgment entered in favor of the plaintiff after a trial before the court and a jury in the City Court of the city of New York.
    Charles A. Gardiner (Alfred E. Mudge, of counsel), for appellant.
    Abraham Oberstein (Frank Vemer Johnson, of counsel), for respondent.
   Scott, J.

When the case is critically examined it is found that the only negligence charged against defendant is that it failed to furnish plaintiff with a safe implement to work with. The learned justice charged the jury that no question was involved respecting the provision of a safe and proper place to work, and this instruction was not excepted to by plaintiff. There is some testimony respecting the failure of defendant to furnish rubber gloves; but all that is immaterial because, owing to the nature of the accident, the use or non-use of india-rubber gloves could have nothing to do with it. The sole accusation of negligence, therefore, is that defendant was provided with an iron shovel, instead of a wooden one, and was not specifically warned of the danger to which he was exposed. There is nothing inherently dangerous about an iron shovel, and it could become a dangerous implement upon the elevated railroad structure, only, if so used as to come into contact with the third, or electrically charged, rail. The plaintiff was not instructed to do anything which necessitated contact with, or dangerous proximity to, the third rail. He was told to clear the snow off the ties, and all that he had done before the accident was to clear off the middle part. Other men, provided with non-metallic brooms, were engaged in cleaning the snow from the rails. The accident occurred in consequence of plaintiff’s act in laying down the shovel so that it made a short circuit between the third rail and a projecting bolt. The plaintiff had been working as one of the repair gang, on and about the third rail, for six months; he knew that it was heavily charged with electricity, and he knew of the existence of the projecting bolt. It is not to be believed that, after his experience as a member of the electrical repair gang, he did not know that there was danger near the third rail. And he was expressly warned to be careful, or, as some of plaintiff’s witnesses said, he was warned not to burn himself. I am quite unable to see wherein defendant was negligent. The shovel was a safe enough instrument for the work which plaintiff was instructed to do, and the warning should have been sufficient for a man who had worked for six months on the third rail as one of the electrical repair gang. I think that the plaintiff should be held to have voluntarily assumed the risks attendant upon the work upon which he was engaged; inasmuch as, to do the work he was directed to do, even with an iron shovel, did not involve risk; and, as he knew, or had the means and opportunity of knowing, the danger which would result from careless performance of the work on his part. I am further of the opinion that reversible error was committed in permitting certain questions to be put to an expert medical witness, because the questions involved, as an important, and indeed the most important, element the assumption that particles of molten lead had gone into plaintiffs eye. There was no credible evidence that this had happened. The plaintiff himself said, it is true, that pieces of molten iron flew into his eye; but, obviously, he could not have known anything about it of his own knowledge. The only other evidence on the subject was that of the physician who attended plaintiff who, although pressed to say that he took particles of iron or lead out of the eye, refused to say so; being willing to go no further than to say that he took some particles out of the eye, but could not say whether they were lead, or iron or dirt; while the physician who was the first to examine plaintiff at the hospital could not recall that he cleansed anything out of the eye. It must be said, therefore, that the assumption that molten metal of any kind entered the eye was wholly unsupported by credible evidence; and, therefore, the hypothetical questions were based upon an important unproven fact. In view of the contention as to the permanency of the injury and the large verdict, this error cannot well be held to have been other than prejudicial to the defendant.

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

Bischofe and Fitzgerald, JJ., concur.

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