
    Bartolo Famularo, Plaintiff, v. The Oil Well Supply Company, Defendant.
    (Supreme Court, Oswego Trial Term,
    September, 1907.)
    Master and servant — Master’s liability for injuries to servant — Actions— Questions for jury — Competency of fellow servant.
    Where, in a common law action against a master for alleged negligence for furnishing a defective appliance and employing an incompetent servant, it appears that the alleged defective appliance was a crane used in carrying heavy loads and electrically raised and lowered by a “ crane-man ” who had never operated the crane before the day of the accident and had an instructor only half a day, the evidence tending to show he should have acted under instruction for two or three days before being permitted to operate the crane alone, and that the injury complained of happened in consequence of the failure of the crane-man to obey a signal to raise the load, the question whether the failure of the crane-man to comply with the signal was a negligent act and was due to his inexperience should be submitted to the jury.
    Motion for nonsuit at close of all the evidence, the decision of which was reserved pending the submission of the case to the jury.
    The action was at common law by employee against employer for negligence. The alleged negligence was the furnishing of a defective appliance, the failure to give instructions in the use of an appliance, and the employment of an incompetent servant. There was a verdict for the plaintiff. The defendant stands upon its motion for a nonsuit and does not ask to set aside the verdict in case there was any question for the jury.
    D. P. Morehouse and Francis D. Oulkin, for plaintiff.
    W. P. Goodelle, H. L. Howe and George L. Roberts, for defendant.
   DeAngelis, J.

The defendant is a foreign corporation organized under the laws of the State of Pennsylvania, engaged in manufacturing, among other things, boilers for steam engines at its plant in the city of Oswego. The j ackets of these boilers are made from steel or iron pjates from ten to twelve feet in length, four feet in width and one-quarter of an inch in thickness.

There are two departments in the defendant’s plant, one known as No. 1, or the east or old shop, and the other known as No. 2, or the west or new shop.

In the west shop, or No. 2, there was a crane used for moving heavy material and among other .things these plates. The construction of this crane was after this manner. There was what was called a “bridge” near the roof extending from east to west -about twenty-three feet from the floor, to each end of which wheels were adjusted which ran on a track, so that this bridge could be moved- from one end of the shop to the other, north and south. Upon this bridge, was a carriage so arranged as to move on wheels on a track from one end of the bridge to the other, and so from one side of the shop to the other, east and west. There was also attached to this carriage a revolving drum and attached to the drum was a cable which by the revolutions of the drum could be raised or lowered. To that cable by means of blocks and chains there were attached two large hooks of steel or wrought iron which were adjusted to the load to be carried. At the west end of the bridge and hanging from it was a wire carriage or cage in which a man known as the crane-man ” operated the crane by means of electrical appliances. There were in the cage three levers by which he controlled the operation of the crane. By one of these levers the load could be raised or lowered, the movement "of the lever one way raising the load and reversing the lever lowering the load, and by another lever in the same manner the load could be moved east or west, and by the third lever, in the same manner, the load could be moved north or south. So that a load by the use of this crane could be taken from or to any point in that shop. There was a pair of small hooks for carrying light loads suspended by a cable from another .drum on the carriage which was operated by a fourth lever in the cage.

At the time of the accident this west shop was occupied by many employees of the defendant and by material in various stages of the work upon it, but there were passageways through which the crane could carry its load.

At the southeast comer of this shop the plates were trimmed by shears and the place was referred to as “ the shears.”

It ■ appears that there was an employee whose principal duty was to attend to and follow the load carried by the crane. He attended to the adjustment of the hooks to the load, followed the load to its destination and released the load from the crane. He was called the hooker-on.”

The jury might have found that other employees of the defendant were accustomed to perform the work of the hooker-on fully half of the time and that the plaintiff was justified in the performance of that service at the time of the accident.

In Ho. 1, or the east shop, the plates were rolled into shape by means of machinery called rolls,” referred to as “ the rolls.” A track rán to this place from a point in Ho. 2 near the division line between the shops and midway from north to south on which a car or track was run to carry the plates from the crane to the rolls.” The platform of this car was about four by five feet and two feet from the floor.

The crane-man from his cage had a general survey of the shop. In operating the crane he was assisted by signals that were given to him by the hand or hands of the hooker-on or person in charge of the load. There were signals to ¿arry the load to particular places, like the shears and the rolls. Then there were signals to move the load east or west or raise or lower it. The signal to raise the load was given by raising the hand palm upwards. The signal to go east or west was given by a wave of the hand in the direction indicated.

The plaintiff testified that the night before the accident the foreman of the works told him to take some plates from “ the shears ” the next morning to “ the rollsthat the next morning, being October 23, 1902, he hooked the crane to a load of ten or eleven plates, one on top.of another, at “the shears.” In order that the iPad should properly carry, the hooks should have been adjusted one on each side of the pile of plates at the bottom and in the middle so that the ends of the load would balance. The plaintiff testified that after adjusting the hooks he gave the signal to the crane-man to raise the plates and they were raised three feet from the floor; that then he signalled the crane-man to move the load and the load started west; that he alone was in charge of the load and followed it at the rear end; that when it had moved sixty feet west, it was. moved northerly, he swinging it to adjust it to the northerly passage; that when opposite the track to the rolls, he swung the load to the right to follow the passage which ran east to the truck which was to take the load and carry it into Ho. 1 to the rolls. The plaintiff testified that when near the truck he gave the signal to the crane-man to raise the load so that it would clear the truck but that the signal was not heeded and the east end of the plates came in contact with the truck, the hooks slipped off and the plates fell on his right leg crushing it and causing him other bodily harm.

The plaintiff claims that the hook on the right side or the south side of the load of plates, as the load was in the position in which it fell, was defective or the plates would not have fallen.

The two hooks as they were originally constructed were alike. They weighed about thirty-five or forty pounds each and were made of steel or wrought iron. The part of each hook that went under the load was about six inches in length and the upright part or shank was about twelve or thirteen inches in length. The lower side and the upright side of the hook were straight but the angle they formed was a little short of a right angle. About a year before the accident the hook complained of was in some way broken by a sledge hammer just at the angle and when it was repaired the upright part was reduced to seven or eight inches and the lower part to about five inches and a half.

The plaintiff relied upon the evidence of one Peter Young, who was the hooker-on at the time of the accident, for his proof of the alleged inadequacy of the shorter hook. Young testified that he told the superintendent of the defendant that the hook as repaired was not safe to be carrying plates with. This was hearsay and only received upon the subject of the notice to the defendant. He further testified that this hook was safe for a load not too large and that ten or twelve plates made a load not too large, but that it was not safe for a load beyond that. Later he testified that this hook was absolutely safe if the load did not extend above the upright part or shank of the hook. Although the plaintiff testified that the loád at the time of the accident consisted of ten or twelve plates, there was other evidence that there were eighteen plates in the load. Assuming that there were eighteen plates in the load, it was conclusively shown that the load would not have extended above the upright part or shank of this hook. In view of this evidence it seems to me that the plaintiff failed to present proof to justify the submission of the question of the inadequacy of the hook to the jury. This eliminates the question as to instructions.

The fact that the hook complained of had been used in the shop continuously from the time it was repaired down to the time of the accident, a period of eleven months, and had been used from that time down to about the date of the trial when it was removed to be offered in evidence, a period of four years and a half, without an accident or any trouble whatever, the fact that the only criticism made upon the hook came from a hooker-on who.frankly testified that it was perfectly safe to carry the load with which rt was freighted at the time of the accident, and the fact that the evidence upon the part of the defendant that it was a perfectly safe appliance was so cogent, have some moral effect upon the situation.

The plaintiff claims that Thomas Lacey, the crane-man, was incompetent by reason of inexperience and that his failure to respond to the plaintiff’s signal to raise the load was the result of that incompetence and a cause of the accident.

It appeared that Lacey called himself a laborer but had been employed' in mechanical work for a period of years. He had been employed in the defendant’s shops' and was familiar with them. He was twenty-five years of age. It appears that he had operated the crane only one day before the accident and that he had had with him in the cage an instructor for only half a day. He had never operated a crane before the day preceding the accident. There is evidence on the part of the plaintiff that a new man for this position should act under an instructor for two or three days before being permitted to operate the crane alone.

I think that the evidence required the court to.submit to the jury the question of the crane-man’s incompetency. The finding of incompetency would not have been enough. The alleged negligent act must have been due to that incompetency. The claim of the plaintiff is that the failure of the crane-man to respond to the signal to raise the load was a negligent act due to the crane-man’s lack of experience and resulting in the collision and falling of the load and the injuries to the plaintiff. I have no difficulty in recognizing • the distinction between an act of an incompetent servant which is not due to his incompetency and an act which is due to his incompetency. Wright v. N. Y. C. & H. R. R. R. Co., 25 N. Y. 562.

I think the jury had a right to find that the failure of the crane-man to comply with the signal was a negligent act and that the act was due to the inexperience of the crane-man within the authorities. Newell v. Ryan, 40 Hun, 286; affd., 116 N. Y. 656; O’Laughlin v. N. Y. C. & H. R. R. R. Co., 9 N. Y. St. Repr. 384; affd., 113 N. Y. 623; Mann v. D. & H. C. Co., 91 id. 495; Sullivan v. Metropolitant St. R. Co., 53 App. Div. 89; affd., 170 N. Y. 570.

My conclusion is that the motion for the nonsuit should be denied.

Motion for nonsuit denied.  