
    Max P. Hohl, Respondent, v. Hewitt Motor Company, Appellant.
    First Department,
    November 22, 1907.
    Harter and servant.—negligence — injury by part of machine retempered by fellow-servant. .
    A machinist engaged in. operating a lathe, "who is injured by -the breaking- of a portion thereof) which' he had given, to a blacksmith, his fellow-servant,' to retemper) is not entitled to récover from his master when- there is no evidence that the fellow-servant was not competent or was negligent in tempering the. piece or that the piece itself or the' appliances'for tempering it were not of proper quality.
    
      Appeal by the defendant, .the Hewitt Motor Company, from an order of the Appellate Term of the.Supreme Court, entered in the office of' the clerk of hlie county of New York on the 10th day of April, 1907, which order reversed an order of the-Municipal Court of the city of' New York, borough of Manhattan, entered on the 31st day of October, 1906, setting aside the verdict of a jury in favor of the plaintiff and granting á new trial, and reinstated, said verdict.
    
      Winter & Winter, for the appellant.
    
      Charles La Rue, for the respondent.
   Scott, J.:

The defendant appeals from an order of the Appellate Term reversing an order of a justice of the Municipal Court setting aside the verdict and directing a new trial.

Plaintiff, a machinist in defendant’s employ, was engaged in operating a lathe when a part called the back center broke and a splinter of steel pierced the plaintiff’s eye. -This back center had recently been tempered by a blacksmith, also in defendant’s employ, and the evidence was to the effect that the breakage occurred because of the high temper to which the steel had been brought, although there was nothing in the appearance of the steel before the fracture from which any one could have detected the fact that the steel had been so highly tempered as to have become brittle. Heither the complaint nor the notice of the accident which was served upon defendant specify the particular negligence with which the defendant is charged, and it is quite certain that the evidence fails to establish any common-law liability. It appears that the tempering of this piece of steel was a not unusual, incident of the general work of the shop. The back center which broke was a part of the machine which should be kept true,- and which at times got out of .true. When this happened it was the duty of the machinist operating the lathe to true it up, which necessitated taking out the temper and then retemperin'g. This retempering was sometimes done by the machinist himself, or he might, as did this plaintiff, give the piece- of metal to the blacksmith employed in the shop to be retempered.

The blacksmith was certainly a fellow-employee and there is not the slightest evidence that he was not' entirely competent for the "work he was employed to do, or that he was. careless or negligent in the performance of the particular work involved in tempering the piece of steel, or that the steel itself and the appliances for tempering it were not of proper-quality.

We are unable to find in the evidence any ground upon which, a verdict in favor of the plaintiff could have been justified, and the trial j ustice was right in setting it aside. It follows that the determination of the Appellate Term must be reversed, and the order of the trial justice affirmed, with'costs to the appellant in this court and at the Appellate Term to abide the event.

Patterson, P. J., Ingraham, McLaughlin and Houghton, JJ., concurred.

Determination reversed and order' of Municipal Court affirmed, with costs to defendant in this court and at Appellate Term to abide-event.'  