
    Joseph Apati, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
    
      Master and servant—injury to the eye of an employee from a piece of steel broken, from a chisel used in cutting an iron rail —proof of the use of a saw for that purpose by others.
    
    A master is not bound to furnish his servants with the best possible machinery or the safest appliances known, but only with such as are reasonably safe when used with reasonable care.
    In an action by a laborer in the employ of a railroad company, who, while assisting in the work of cutting a rail by means of a hammer and chisel, had the sight of one eye destroyed by a piece of steel which broke from the edge of the chisel when it was struck with the hammer, it appeared that some other railroad companies used a saw instead of a hammer and chisel to cut rails.
    
      Held, that that fact did not justify the court in submitting to the jury the question whether the defendant should have used some other method of cutting rails, there being no evidence that the hammer and chisel method was not reasonably safe, or that the railroad companies which used the saw system had been led to make the change because of the greater safety of that method.
    Appeal by the defendant, The Delaware, Lackawanna and - Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 19th day of February, 1901, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 19th day of February, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      Hammond Odell [Hamilton Odell with him on the brief], for the appellant.
    
      John F. Brennan, for the respondent.
   Woodward, J.:

On the 17th day of July, 1900, the plaintiff was employed by the defendant’s foreman in charge of its work at Bernardsville, R. J., as a laborer, to fix the ground around the depot. During the employment the plaintiff, with other members of the gang, was called upon to assist in cutting off some rails. In performing this ■ work a chisel, made somewhat after the form of an axe, with a handle, was used. The rail to be cut was placed crosswise over another rail, and while the foreman held the chisel by the handle, one of the other members of the “ gang ” struck the chisel upon the-head, and in this way a cut was made all the way around the rail, when it was broken off by letting it fall in such a manner as to receive the strain at the weakest point. The plaintiff, on the occasion of one of these cuts being made, was directed by the foreman to sit upon the rail at a point near the place of operation, and about two feet from the place where the chisel was in use. While sitting in this position the man who was using the sledge hammer struck the chisel, when a piece from the cutting edge of the tool was broken out, striking the plaintiff in his right eye, destroying' the sight. It ■ was testified to by one of the witnesses that two other chisels had been broken just before this accident,'and that they had been thrown aside by the foreman.

Upon the trial of the action the defendant moved at the close of plaintiff’s case to dismiss the complaint, on the ground of a total absence of proof of negligence on the parf of the defendant.' The learned court announced that it would reserve decision upon the motion and hear the defense. At the close of all of the evidence defendant’s attorney said: “ I ask your Honor to dispose of the motion I made at the close óf the plaintiff’s casé.” The learned court responded: I think I will deny it, and send it to the jury on the single question as to the sort óf apparatus you used, as to whether that was negligence,. There is nothing on' the other branch of the case, because your tools, from outward appearance, seemed to be all right, and I will take that from the jury entirely.”

Defendant excepted to this ruling.

In charging the jury the learned court said : The law of the . case as I lay it down to you is, that it was the duty of the defendant railroad company, by whom the plaintiff was then employed, to furnish him with a reasonably safe appliance for the doing of thé‘ work to which he was put. By that I do not mean to say that the company wére to furnish him with the best and latest appliance, the most modern; but the ordinary, everyday appliance in general use. Therefore, you will inquire and determine as a question of fact from the evidence given in your hearing, and that alone: was this method in use, the hammer and chisel, a reasonably safe way of doing the work, or is there a better way in common general use, which defendant should have adopted ? You will also inquire how general in use is the saw method about which testimony has heen given, as applied to the cutting or separating of rails. How long has that method been in use ? If there was in general use a better or safer way than the one used, you will say whether the defendant was negligent in using the chisel method instead of the saw way of cutting rails.” At the close of the charge, defendant’s attorney asked the court to charge “ that the defendant was not bound to use the hack saw instead of a hammer and chisel, even if the jury are of the. opinion that the hack saw was an improved method of cutting rails.” This the court charged. Defendant’s attorney then said: “I would except then, if your Honor please, to the submission by the court to the jury of the question of the defendant’s negligence, claiming that there is no such question fairly involved. I also except to that part of your Honor’s charge in which you submit to the jury the question whether there was a better way of doing the work than the way pursued by the defendant on the occasion.” To this the court replied: 111 do not mean to limit them. I tried to make myself thoroughly understood. It was not a question of a better way; it was a question whether the saw was the everyday, accustomed, general way in common use. If they do not find that to be the fact, then there can be no recovery.” Defendant’s attorney: I will except then to your Honor’s submission of that question to the jury, as I claim there is no proof that it is in common or general use.” The court: “ That I leave to the jury to determine from the evidence.”

The jury rendered a verdict for the plaintiff for $2,500, and defendant’s counsel moved to set aside the verdict and for a new trial upon all of the grounds mentioned in section 999 of the Code of Civil Procedure. This motion was subsequently denied, and the appeal brings up for review the exceptions.

The appellant urges that there was no proof of negligence on the part of the defendant; therefore, the court erred in denying the motion to dismiss the complaint. The respondent, on the other hand, insists that as the.defendant introduced evidence after making the motion to dismiss, the defendant must be deemed to have waived the point, and that this question cannot be reviewed, citing Jones v. Union Railway Co. (18 App. Div. 267), where it is said that “If, at the close of a plaintiff’s case, the defendant is confident that no cause of action has been made out, the only method of securing a review of an erroneous ruling on the point is to let the case stand without further evidence. If the defendant enters upon its evidence, it takes the chances of supplying the deficiencies of the plaintiff’s case.” While it isj perhaps, true that the defendant, by introducing -evidence, takes the chance of supplying the defects in the plaintiff’s case, it is not to be doubted that, by a renewal of the motion at the close of all of the evidence, the defendant has the right to a ruling as to whether there is evidence in the case to go to the jury at that time (Hopkins v. Clark, 158 N. Y. 299, 304), and the defendant, in the case at bar, not having been able tó get a ruling upon his motion at the close of plaintiff’s case, by requesting the court to dispose of his motion at the close of the evidence, must be deemed to have intended a renewal of the motion, and his exception to the disposition then made of the motion gives him the right to review here. We are brought, then, to a consideration of the question, “Was there any evidence of negligence on the part of the defendant ; was there a question to be submitted to the j¡ury ? ”

The defendant owed the plaintiff the duty of furnishing him a reasonably safe place in which to perform his work, and the further duty of providing him with reasonably safe tools and appliances for the performance of the labor assigned to him. He is not bound to provide the best possible machinery or the safest appliances known, but only such as are reasonably safe when used with reasonable care. He is not called upon to procure other devices to secure greater safety, provided those furnished by him are reasonably safe. The test of responsibility is not whether he omitted to do something that he could have done, but whether he Was reasonably careful and prudent. (Quigley v. Levering, 167 N. Y. 58, 63, and authorities, there cited.) For instance,, had the plaintiff be.en employed to work at night where he would require a light, and if the defendant had furnished him a kerosene lamp, and this had been overturned by., a fellow-employee, resulting in injury, would any one contend that because electric lights and gas lights were in common every-day use in the cities of Chicago, Baltimore and Hew York, the jury could be allowed to speculate as to the negligence of the defendant in furnishing a kerosene lamp ? Yet the learned court submitted to the jury whether the defendant was guilty of negligence because it had furnished a chisel and hammer to cut off rails, while some other kind of a contrivance was used in the cities mentioned to accomplish the same work. There was no evidence, with the possible exception of a gratuitous remark by one of the witnesses, that the saw plan had been adopted by all railroad companies that want to accomplish any work in safety,” that the saw plan was safer than the chisel and hammer, or that the railroads ■using the saw system had been led to make the change on the score of safety. The witness who intruded this remark into his evidence admitted, on cross-examination, that he knew nothing about any roads, “ with the exception of the Third Avenue and Metropolitan ” street railroads in the city of Mew York,' and the inference is just as strong that the saw system was adopted because of greater economy in time or greater accuracy and efficiency, as that it was on account of the safety of the process. It is conceded that the tools were such as were ordinarily used; that they were in good condition, so far as any reasonable inspection would disclose defects, and it was error for the court to submit the question of negligence to the jury upon the proposition that they might determine whether the defendant should have used some other method of cutting off its rails in making repairs in its railroad property. The appliances used on this occasion were of the simplest construction ; they were in form such as have been in use from the most remote antiquity, and have been in use lor the purpose for which the defendant was using them from the earliest days of iron and steel railway tracks ; and the only question of the defendant’s negligence, under the ■circumstances, was Whether these tools were reasonably safe for the performance of the work which was to be accomplished. If they were, then there was an -end of the case. The defendant is presumed to have done its duty; the burden of proving negligence was upon the plaintiff, and in the absence of evidence to show that the chisel and hammer were not reasonably safe for the cutting of these rails, there was no case for the jury. It may be that if the plaintiff had put in evidence, showing that the use of a hammer and chisel for this kind of work was unsafe, that it was so unsafe that it had induced other railroads generally to adopt the saw system, the jury might have been warranted in holding that it was negligent on the part of the defendant to insist upon the use of the hammer and chisel, but there is no such evidence in the case. All ■ that can be spelled out of the evidence is that some railroads in' some of the cities of the countiy have used another method, but .whether that is due to the greater efficiency and economy of the saw system, or whether it is because they have found the hammer and chisel so dangerous as to demand the change does not appear, and we are clearly of opinion that it was error to refuse to dismiss the complaint.

We are equally clear that the charge of the learned court, while stating the law- correctly in the first instance, was erroneous in elaborating and explaining, and that the interests of justice demand a new trial.

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

Goodrich, P. J., Bartlett, Hirschberg and Jenks, JJ.,. concurred.

Judgment and order reversed and new trial granted, costs to abide the event. ‘ '  