
    Perry O. Hazzard, Appellant, v. The State of New York, Respondent.
    
      Negligence—injury to an employee operating a pile driver — machinery defective in that its cog wheels are thrown into gear by a jar -r- safe place of employment — negligence of a coemployee—assumption of,risk.
    
    In the work of repairing a feeder of the Erie canal, under the direction of a reservoir tender appointed by the Superintendent of Public Works, a pile driver was used. The weight attached to the pile driver was raised by means of cog gearing set in motion by a crank operated by hand power. The weight was dropped by throwing the cogs out of gear by means of a lever.
    On the occasion in question, after the cogs had been thrown out' of gear, and while the Weight was dropped, the jarring of the machinery occasioned by the falling weight threw the cogs back into gear, setting the crank handles into such rapid motion that they were broken into pieces, one of which struck and injured an employee engaged in operating the pile driver. There was evidence tending to show that the accident was due to the fact that the gearing was so defective in operation that the jar of the machine, caused by the falling weight, would allow the cogs to fall back into gear. The reservoir tender, under whose direction the work was being performed, knew of the defect in the pile driver, but the injured employee did not have such knowledge. '
    
      Held, that it was improper to dismiss the injured employee’s claim against the State;
    That the State was bound to use reasonable care in providing the injured employee with machinery and appliances reasonably safe and suitable for his use and to keep such machinery and appliances in repair-;
    That the State could not escape liability upon the theory that the negligence, if any, was the negligence of a coservant, because the rule exempting a master from liability for injuries sustained by an employee through the negligence of a fellow-servant does not apply where the master has furnished defective machinery;
    That it could not be said that the risk was obvious to the injured employee or that he 'had assumed such risk.
    
      ■Appeal by the plaintiff,. Perry O. Hazzard, from a judgment of the Court of Claims in 'favor of the defendant,, entered in .the office of the clerk of said court on the 22d day of April, 1904, dismissing the plaintiff’s claim'.
    The claimant was injured while assisting in the use of a pile driver belonging to the State in repairing the feeder of the Erie canal near the Madison reservoir under the direction of one E. R. Goman, a reservoir tender’appointed by the Superintendent of Public Works. The .pile driver was about twenty feet high and the hammer, which weighed about 500 pounds, was attached to a rope passing over a pulley at the top and was raised by hand power applied to cranks through ■ a cylinder or windlass near the bottom, about which the lifting rope - ■coiled. The cylinder was from six to eight feet long and sixteen inches in diameter. On one end of the cylinder was an iron wheel Screwed to it. ■ This had cogs fitted into another wheel attached to the crank which turned the cylinder. When the hammer was at its’ greatest height these two cog Avlieels were uncoupled or disengaged by a lever and the hammer would then fall uncoiling the rope Avhile the crank handles remained motionless. • The cogs when ■separated were abotit a quarter of an inch apart. At the time the claimant was injured he was employed as one of a gang of six men, two at either end Of the cylinder operating the cranks, one of whom was the claimant, one bringing the piles and one operating the lever which disengaged the. cogs. The hammer had been raised to its full height, the lever applied, the cogs .disengaged and the hammer commenced to fall, Avhen by the jar of the machinery occasioned by The falling hammer the cogs were thrown back -into gear, setting the crank handles in motion with such velocity that they were broken in pieces. One of the ■ pieces flew and struck the plaintiff' on his leg, causing a painful flesh-wound and also a compound'com-minuted fracture of the bone about three or four inches below the •knee joint. .
    The- claim of the claimant' was dismissed at the close of his proofs, and from the judgment of dismissal he appeals.
    
      E. W. Cushman, for. the appellant.
    
      Julius M. Mayer, Attorney-General, and Willis H. Tennant, Deputy Attorney-General, for the respondent.
   Chester, J.:

The contention of the claimant is that the pile driver was an unsafe and unfit machine and apparatus furnished to work with and that the injury occurred by reason thereof. No opinion was written upon the dismissal of the claim in the Court of Claims, but the motion to dismiss was made upon the grounds that there was no evidence of any defect in the implement, nor of any negligence on the part of any one having charge of it, and if there was any negligence it was the negligence of a coservant engaged in the same employment as the claimant. There was much evidence of the defective operation of the gearing and of the great difficulty in throwing the machine out of gear. There was also evidence that the accident was caused because the gearing was so defective in operation that the jar of the machine caused by the falling weight let it go back in gear again. ' .

The State was bound to use reasonable care in providing the claimant with machinery and appliances reasonably safe and suitable for his use and to keep such machinery and appliances in repair. The claimant’s proof shows very clearly that the State was negligent in this respect and the decision that it was not was against the weight of evidence. The claim of the State, that even if there was negligence it was the negligence of a coservant, cannot be sus-, tained upon the proof, because where defective machinery is furnished by a master in violation of the rule above stated, the rule which exempts him from liability for injury through the negligence of a fellow-servant does not apply. (Kain v. Smith, 25 Hun, 146; affd., 89 N. Y. 375; Rollings v. Levering, 18 App. Div. 223.)

Nor can it be held upon this evidence that the claimant assumed the risk. It appears that Hr. Coman had knowledge of the defect in the apparatus and that the claimant did not have such knowledge. It is true that there is much evidence .that there was trouble in operating the lever so as to disengage the cogs and that slight repairs were made a few times in an attempt to remedy the trouble and that the claimant had knowledge of these matters, but there is no testimony that he knew that the hammer in falling was likely to jar the cogs into position after they were disengaged, so that the handles would be set into such rapid motion as to cause them to break and injure him. It cannot, therefore, be said that the risk was an- obvious one to the claimant. He had worked .there but two or three days before the day of the accident and the proof is that all he knew about the defective workings' of the machine was that the cogs were not éasi-ly thrown out of gear.

Upon the proof we think that the learned, trial court was in error in dismissing the claim. The judgment should be reversed and a new trial granted, with costs to the claimant to abide the event.

All concurred.

judgment reversed and new trial granted, with costs to appellant to abide event. ' -  