
    MARTIN DELANEY, Appellant, v. HENRY HILTON, et al., Respondents.
    
      Negligence—falling of elevator—defeats and insufficiency of machinery, notice of through knowledge ,of agent.—Evidence.
    
    The plaintiff was employed by the defendants to run an elevator in their place of business, and while so engaged the chain by which it was held broke, apparently without cause, and the car fell, whereby plaintiff was severely injured, to recover damages for which injuries this action was brought. The elevator was new, and was made by competent manufacturers, upon an order from defendants for a first-class machine, and there was evidence showing that it was such, and in all respects fitted for the work for which it was made, and that defendants were so informed by said manufacturers, upon an examination made by them at defendant’s request. The evidence showed that defendant’s head-engineer, who had entire charge of the machinery of the house, stated before and after the happening of the accident, that the chain was not strong enough for the work of the house. At the time of the accident the car was descending without freight, and there was no flaw in the broken link of the chain.
    A verdict was directed for defendants.
    
      Held, error, that though it was not negligence for defendants to rely on the supposition that the elevator had been properly constructed, and to permit their employees to use it without examination, yet the evidence was such as to raise, for the consideration of the jury, questions as to the sufficient strength of the chain, as to notice to defendants, through the knowledge of its agent, the head engineer, as evidenced by his said statements, and as to defendants’ negligence in using the chain after such notice.
    Sedgwick, Oh. J., dissenting, wrote for affirmance, holding that as there was no evidence that the head engineer had seen any signs of weakness, or insufficiency in the chain, unless its size was such a sign, the defendants can only be charged with the fact that1 the head engineer had the opinion that the chain was too light for the work of the house, and as against that, they were justified in relying upon the opinion of the makers of the elevator.
    As bearing on the question of defendants' negligence, plaintiff offered to show that immediately after the accident, the chain which broke was replaced by a larger and stronger one :—Held, that the evidence was properly excluded.
    One of defendant’s witnesses was asked if there was any doubt in his mind as to the capacity of the elevator to carry any weight of a certain kind of iron that could be put on it, which was objected to as irrelevant and immaterial. Reid, that such an objection, not touching the competency of the evidence, furnishes no ground for reversal.
    
      Decided June 2, 1883.
    Before Sedgwick, Ch. J., Text ax and O’ Gorman, JJ.
    This action was brought to recover damages for injuries sustained by the plaintiff through the negligence of the defendants. It was tried before the court and a jury. A verdict was directed for the defendants. From the judgment entered on this verdict and from the order denying a motion for a new trial the plaintiff appeals to the general term of this court."
    The evidence is, that the plaintiff was employed by the defendants, to run an elevator ; that while he was running this elevator the chain, by which it was held, broke, and the plaintiff and the elevator fell into a cellar; that the chain and elevator were new and had been used but eight days, and that the chain was, what is known as a “ three-eighths ’ ’ chain. At the time of the accident the elevator was going down empty with the plaintiff on it.
    Further facts appear in the opinions.
    
      O. A. H. Bartlett and Franklin Bartlett, for appellant.
    
      Henry H Rice, for respondents.
   Truax, J.

The plaintiff endeavored to show that immediately after the accident the broken chain was replaced by a larger and stronger one. This was objected to and excluded. To this ruling the plaintiff duly excepted. This evidence was properly excluded. It did not prove or tend to prove that the defendants were negligent in getting or in using the chain that broke. They had to get another chain of some kind. They may have got a larger chain, because the accident showed them that it would be safer to use a larger chain than to use the one they were using ; but this cannot be held to be an admission by the defendants that they knew before the accident, that the chain was unsafe, or that they had been négligent in selecting the chain, or that they had not used due care in ascertaining whether or not the chain was large enough. Nor is it an admission that they knew that the chain was not strong enough to carry the elevator. The fact in issue was the negligénce of the defendants at or before the accident. This evidence did not tend to prove the existence of that fact. The plaintiff has cited certain authorities for the proposition that the evidence above referred to should have been received as an admission by the defendants that the chain in use was not large enough. Among these cases is Paintor v. Northern Central R. R. Co. (83 N. Y. 7). An examination of the printed case on appeal, shows that the evidence was, that the eye-bolt, the breaking of which caused the accident, had been replaced with a larger one. This evidence was not objected to nor was there any request made in respect to it. It was submitted to the jury, and therefore it must be held that the defendant conceded that it was competent evidence. At any rate, the court of appeals was not called upon to determine whether it was or was not competent evidence. There was other proof of negligence on the part of the defendant and the court of appeals held that although all the proof of negligence on the part of the defendant was slight, it was properly submitted to the jury. The court of appeals have held that evidence of a character similar to the evidence offered in this case was properly excluded (Dougan v. Champlain Transportation Co., 56 N. Y. 1; Baird v. Daly, 68 Id. 547; Dale v. Del. L. & W. R. R. Co., 73 ld. 472).

One of the defendants’ witnesses was asked whether there was any doubt whatever in his mind as to the capacity of the elevator to carry up any weight of that kind of iron that could be put upon it. This was objected to as immaterial and irrelevant, the objection was overruled and jhe plaintiff excepted. The objection made was not that the opinion of the witness was incompetent, but merely that the evidence was immaterial. This objection furnishes no ground for reversal (Ward v. Kilpatrick, 85 N. Y. 416).

The defendants did not undertake to build the elevator in question themselves, or by their servants, but they made a contract to construct it with Otis Brothers, by whom it was constructed for a gross sum. The experience of Otis Brothers in constructing elevators was very large. They had been employed by the defendants before. The contract under which this elevator was constructed, provided for the construction of a first-class elevator. There is no evidence upon which to base any allegation of incompetency on the part of Otis Brothers, nor any charge of negligence on the part of defendants in selecting them to construct the elevator, and it was not negligence for the defendants to rely upon the supposition that the elevator had been properly constructed and to permit their employees to use it without examination. All that such examination would have disclosed would have been that the chain appeared light, but even in that event, it would not be negligence for the defendants to rely upon the judgment of Otis Brothers, that the chain was strong enough to carry the weight which it was expected it would be obliged to carry. There was no error committed in directing a verdict for the defendants, unless there is evidence that the defendant knew that the chain was not strong enough to do the work required of it, and that this lack of strength was the cause of the accident. There is no evidence that either of the defendants had personal knowledge that the chain that broke was too light, but there is evidence that Mr. Denning, who was manager of the store where the accident happened, but who had nothing whatever to do with the construction or management of the elevator had been told by Mr. Bond, who was the head engineer, and who had entire charge “ of all the machinery and elevators in the building, that the chain was too light for the work of this house,” a short time before the accident. It was also proved, without objection, that Mr. Bond had said immediately after the accident, “Now, Denning, I knew that chain from the first day was not strong enough for the car,” and “that is the chain I had been repeatedly at Mr. Denning about being too light for its work.” Although this testimony was received without objection, yet I am of the opinion that it was not evidence of the fact that Bond had given the defendants or their superintendent notice of the fact that the chain "was too light for its work. Neither was it admissible as part of the res gestee (Luby v. H. R R. R. Co. 17 N. Y. 131; Whitaker v. Eighth Av. R. R. Co., 51 Ib. 295; Hamilton v. N. Y. C. R. R. Co., 51 Id. 100; First Nat. Bank v. Ocean National Bank, 60 lb. 297; Furst v. Second Ave. R. R. Co., 72 lb. 542). And the omission to object to this testimony was not a concession that it was competent (Hamilton v. N. Y. C. R. R. Co., supra).

It was no part of Denning’s duty to keep the elevator in repair, or to guard against the consequences of any defects or weakness therein. And therefore notice to Denning was not notice to the defendants.

I am of the opinion, however, that the admission of Bond, whose duty it was, as head engineer in charge of all the machinery and elevators, to guard against the injurious consequences of any defects or weakness therein, was competent evidence to prove notice to Bond, and that notice to Bond was notice to the defendants (Thompson Neg. 994, and cases there cited).

It would be competent, to prove that a third person had notified him of the fact and it is more satisfactory to prove that he . admitted that he knew of the fact (Chapman v. Erie Railway Co., 55 N. Y. 584).

If it be the fact that the chain broke because it was too light, this notice to the defendants was sufficient to put a prudent man on inquiry, and as there is no evidence in the case that they made any inquiry, the jury would have been authorized in finding, had the case been left with them, that the defendants were negligent in using the chain as they did use it.

It therefore remains to be considered whether the chain did or did not break because it was too light for the work of the house. There is no evidence that it did any more than the work of the house and the inference to be drawn from the evidence is, that it did only the work of the house, for the plaintiff testified that he carried such loads as Bond, who knew of the defect, told him to carry. An examination of the link which broke, showed that it was a sound link. The plaintiff testified that he had carried only such loads as he had been told by Bond to carry, and that he had never known the elevator to catch except once when it had on a large bag of waste paper, when he lowered the elevator and changed the position of the bags, and that afterwards it ran smoothly and without any hitch or interruption. This evidence would warrant the jury in finding that there was no defect, or flaw, in the chain, and that it broke because it was to light for its work.

The court should have left it to the jury to determine the following questions:

First. Did the defendants have notice before the accident of any defect or weakness in the chains ?

Second. Did the chain break because of this weakness ?

Third. Were the defendants negligent in using the chain, under all the circumstances of the case, after such notice?

The judgment and order appealed from are reversed, and a new trial is ordered with costs to the appellant to abide the event.

O’Gorman, J.

[Concurring.]—The validity of plaintiff’s claim to recover damages in this action depends on the question whether or not the defendants were guilty of negligence which caused the injuries complained of. The gist of the action is negligence, and the burden of proving the negligence of the defendants rests on the plaintiff.

At the-'close of the plaintiff’s case," a motion was made on behalf of the defendants for the dismissal of the complaint. This motion was denied. At the close of the whole case, a motion was made on behalf of the defendants that the court should instruct the jury to render a verdict for the defendants. This application was granted and the jury rendered a verdict for the defense, The plaintiff’s counsel excepted and moved.for a new trial which motion was denied.

The inquiry now is whether, to use the language of the learned trial judge, on the whole case and considering the evidence in the light most favorable to the plaintiff, and giving him all the inferences which might be reasonably drawn to his advantage, a jury would be justified in rendering a verdict in his favor. The evidence thus considered showed this state of facts. The defendants, proprietors of a well-known dry-goods house on Broadway, had for many years before September, 1876, employed the plaintiff in operating their elevators. Some time in August, 1876, they had cause to be constructed and put up in their store, an elevator, for the purpose of carrying their goods from the cellar to the sidewalk, a distance of about twenty feet. This elevator was constructed and put in,its place by competent manufacturers, and was considered by witnesses for the defendants, who had sufficient acquaintance with elevators of the kind, to be remarkably strong and sufficient to carry any weight that the defendants had reason to put on it and could not be loaded sufficiently to suffer injury in carrying the goods in which the defendants dealt. Witnesses were not agreed in opinion as to the precise weight which the elevator was capable of carrying—one witness stating it as one ton, while others placed its capacity as high as five or six tons. The plaintiff was employed to operate this elevator by Mr. Denning, who was the general superintendent of the defendants, with power to employ and discharge the defendant’s servants and to assign to them their duties. The duty assigned by him to the plaintiff was to stand on the elevator car to manage and guide it and to load it in the cellar and to help to unload it on the sidewalk. He had to be on the elevator, going up and down. For eight days, the plaintiff had thus operated this elevator, without any mishap; during that time, it ran smoothly without hitch or interruption in the machinery, and nothing attracted his attention or gave warning that there was any danger to be ayiprehended. On the morning of the eighth of September, 1876, at about twenty minutes to eight, the plaintiff had brought up in the car of the elevator, two loads of flannel and one case of linen, and was descending in the car, which then carried no other freight, when one of the chains sustaining the elevator broke, the elevator fell into the cellar and serious injury to the plaintiff was the result. On one occasion, before the elevator had begun to run, Mr. Denning was near the eleva tor, in company with Mr. Bond, who was the chief engineer of the defendants and had entire charge of all the machinery and elevators in their store and in speaking of this elevator to Denning, Bond said “ that chain is too light for the work of this house.” The chain was three-eighths of an inch in diameter at the time of the accident. Immediately after the accident, while the chains were still vibrating, Bond came up and was heard to say, “ That is the chain that I have been repeatedly at Mr. Denning for.being too light for its work.” Bond was not living at the time of the trial. It is in evidence that Bond then also said to Denning, who came to the scene of the accident at nearly the same time as himself : “ I knew that chain, from the first day, was not strong enough for the car. I cautioned you about it, and now you see the consequence.” Some old iron was in the cellar, which the defendants desired to sell. This, by the instructions of the defendants, was carried up in this elevator car. Bond directed the plaintiff what load was proper, and plaintiff followed his directions. The elevator never caught but once when plaintiff was taking up a large bag of waste paper, and he then lowered the elevator, changed its position and carried the paper up all right. A witness for the defense testified that he examined the elevator immediately after the time of the accident, that he saw one of the links of the chain on one corner broken, the machinery was all right and in good order; there was no flaw in the link; the iron was strong. He saw a mark where something had been jammed between the elevator and the iron beam covered with tin. This, in the opinion of the witness, indicated such a jam of the elevator as would explain or account for the breaking of the link.

Plaintiff’s counsel offered evidence to prove that immediately after the accident, repairs were made by defendants to the elevator, and a chain was substituted stronger than that which had broken. This evidence was not admitted.

The evidence does not disclose with clearness what was the immediate cause of the breaking of this chain at the moment when it did break, and inquiry on that subject must depend on such inferences as may reasonably be derived from the evidence. On the one hand it might be inferred that the chain, if it were, as Bond said it was, too slight in the beginning, became more and more enfeebled by the wear and tear of eight days’ use, until the moment of the accident when it broke ; while on the other hand, it might perhaps be questioned whether the mark indicating the jamming of the elevator did not tend to prove some negligence in loading the elevator which might have led to the accident. But these were questions of fact, as to the conflict of evidence and the comparative weight to be attached to evidence, which properly came within the province of the jury ; and if a jury had found a verdict for the plaintiff on the evidence, a court would not have been justified in setting that verdict aside.

Recent authoritative judicial decisions have made the rules of law, as applicable to this case, comparatively clear. The master is bound to use ordinary care, vigilance and caution, in providing for his servant, machinery competent, sufficient and safe in its construction, and he is also bound to use the same degree of care in maintaining the machinery in such condition of competency and safety ; and if the master knows, or by ordinary care could have known, of any defect or insufficiency in the machinery tending to cause danger to his servant, and fails to correct the defect, or to give his servant timely warning of his danger, he is legally responsible to his servant for any disaster that may ensue.

Acts which the master, as such, is bound to perform for the safety and protection of the employees, cannot be delegated so as to exonerate him from liability to a servant who is injured by the omission to perform that act or duty, or by its negligent performance, whether the nonfeasance or misfeasance is that of a subordinate or inferior agent to whom the doing of the act has been committed, or on whom it has properly devolved (Fuller v. Jewett, 80 N. Y. 52; FIike v. Boston R. R., 53 Id. 549; Malone v. Hathaway, 64 ld. 5; Hough v. Texas R. R., 100 U. S. [10 Otto] 217). The servant is justified in presuming that these duties on the part of the master have been duly performed, and failure of the master to perform these duties is not one of the-ordinary risks of the business which the servant is by law presumed to accept. On the other hand, if the servant had as good means to.detect the existence of a dangerous defect or insufficiency in the machine, as the master had ; if the defect was obvious, or could by ordinary care have been discerned, and if the servant continue in the employment without objection or remonstrance, then the servant is presumed to have accepted the extraordinary risk and is himself responsible for the consequence (Laning v. R. R., 49 N. Y. 532-534). The servant is not chargeable with knowledge of latent defects, but only with knowledge of such as are obvious (De Forrest v. Jewett, 88 N. Y. 264, 268).

There is no evidence in the case at bar that the insufficiency of the chain was obvious, but knowledge of its insufficiency for the work of the house was communicated by Bond, the chief engineer, to Denning, the defendants’ superintendent ; and for the purposes of this contention, Bond’s knowledge must be held to be the knowledge of the defendants (B ickner v. R. R., 2 Lans. 506; aff’g 49 N. Y. 672; Laning v. R. R., 49 N. Y. 521). And the negligence of these agents of the defendants to act upon their knowledge for the protection of the plaintiff, must be regarded as the negligence of the defendants (Laning v. R. R., 49 N. Y. 532-3; Fuller v. Jewett, 80 ld. 46; Hough v. Texas R. R., 100 U. S. 217).

The question whether plaintiff could himself by ordinary care have detected the insufficiency of the chain and also whether his own negligence to use such care contributed to the account were questions of fact within the province of the jury to consider (Payne v. R. R., 83 N. Y. 574).

The following decisions of the court of appeals have been cited as bearing on this case: In De Graffe v. N. Y. Central R. R. (76 N. Y. 128-9), it was proved that a brake chain was made of the best material and would bear a strain of six times the amount of the power applied. The court of appeals held that from that evidence and the fact that the chain did break, although the evidence was far from conclusive, yet the case was rightly submitted to the jury and the jury was justified in concluding that there was some weakness or defect in the chain. A more recent decision, Dillon v. R. R. (48 Super. Ct. 283), seems to adopt the same principle. There it was held that the mere fact of the falling of a floor loaded with oats was evidence to go to the jury of a defect in its construction (see also Mullen v. St. John, 57 N. Y. 567).

In the case at bar, the jury would have had for their consideration, if the case had been submitted to them, the additional fact, that the chief engineer of the defendants had communicated to them his opinion that the chain was too slight for the work of the house and in what he said immediately after the accident, attributed the accident to that cause.

The judgment is reversed and a new trial ordered, with costs to the appellant to abide the event.

Sedgwick, Ch. J.

[Dissenting.] I agree with Judge Truax in all matters discussed by him, excepting that I am of opinion that there was ho evidence that there was any negligence of defendants in respect to the elevator or chain (De Graff v. N. Y. C. & H. R. R. R. Co., 76 N. Y. 126).

The defendants had incontrovertibly proved that they had used due diligence in procuring a skilled man to construct the elevator. The only piece of evidence that is referred to, to show that the defendants had notice that there was a defect, in fact, is a declaration of an engineer who was to, and afterwards did, run the elevator. He said “ that chain is too light for the work of this house.” It is said that this shows knowledge on his part, that the chain, was too light, if such were the fact, and that as he was defendant’s agent, the knowledge is imputed to the defendants. This declaration shows no knowledge as to a defect in the chain, although it may show that he had an opinion, from the appearance of the chain, that it was too light for the work of the house. Assume that the defendants are intended to have the opinion that their agent is supposed to have,—or indeed that they had, of themselves, such an opinion,—what proof is there that they did not do what was required by the law to be done, in consequence of its existence ? There is no proof that they did not do all that could be done. ¡N o negligence is to be presumed. They, as the proof incontrovertibly shows, procured a man of special experience and^skill, and made such communication to him that he used this chain, and he testifies that each chain would lift 3,000 pounds ; that is, that the four chains would support four times the weight which was expected to be carried upon the elevator. Such was his opinion, as against the opinion of Bond. It seems to me, it does not tend to show negligence, if the defendants relied upon the judgment of the maker of the elevator rather than upon their own or Bond’s judgment.

The evidence does not present to me any proof that the chain was, in fact, what Bond said he thought it was, that is, too light for the work of the house. It cannot be that the work of the house, as thus used, means the first load or the loads of eight days. It means the work for an indefinitely long time. It in reality implies that it may be sufficient for some time, or a short time, but not for a long time. And the fact that it broke when it did, indicates that the breaking was nob due to what appeared to Bond to be a deficiency.

But the evidence shows that Bond was not defendant’s agent in respect to matters connected with the elevator, at the time he made the remark. The evidence clearly shows that he had nothing to do with the elevator at that time. Mr. Hilton had the affair in his own charge entirely. He had interviews with the maker, had given the instructions, had made the contract, had not called on Bond for any service, and had not put him in charge of the elevator. The elevator had run eight days when the accident happened on September 8. The conversation was in the latter part of August, and before it was started and run. As Bond had no service in connection with the making of the elevator, or in its running, he was not such an agent of the defendants that a remark he made constitutes notice to the defendants, or implies knowledge on their part.

I think that the judgment should be affirmed, with costs.

Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

Decided May 5, 1884.

Re-argument of appeal. The former appeal was heard in January, and was decided in June, 1883.

Clifford A. H. Bartlett, for appellant.

Horace Russell, for respondents.

By the Court.—Truax, J.

The respondents contend on this re-argument, that “ the chain broke, not because it was not strong enough for the use for which it was intended, but because of improper use by the plaintiff, or some other person, without the knowledge of the defendants.” This point was considered on the former appeal. We then came to the conclusion that the evidence would warrant the jury in finding that the chain broke because it was too light for its work, and not because the elevator had been improperly loaded or used. We see no reason to change the conclusion that we then came to.

The respondents also contend that they are not liable, ‘ ‘ because they did not build the elevator themselves, but purchased it and its appliances of independent contractors of skill and repute.” Undoubtedly the defendants had the right to rely to some extent upon the judgment and skill of the manufacturers from whom they bought the elevator. That it was purchased from a firm skilled in the manufacture of elevators was a fact that tended to excuse the defendants, but it was not of itself a conclusive justification, under the circumstances disclosed on the trial. We did not hold that the defendants were negligent in purchasing the elevator. We held that, whether they were or were not negligent in using the elevator after they had received notice that it “was too light for the work of the house,” was a question of fact that should have been submitted to the jury. This notice we then considered, and now consider, sufficient to put a prudent man upon his guard. Up was as particular as the notice in Kain v. Smith (89 N. Y. 375), that “ the old jigger was played out,” which the court of appeals said was direct notice that “ a new jigger was needed.” In Ford v. Fitchburg R. Co. (110 Mass. 240), the defendant was notified “ that the engine was nota proper one to run the train with ;” and in Huddleston v. Lowell Machine Co. (106 Id. 282), the defendant was notified “ that the floor was decayed, and ought to be seen to and fixed,” and it was held that these notices were sufficient to put the defendants on their guard.

This case is to be distinguished from Malone v. Hathaway (64 N. Y. 5), and Devlin v. Smith (89 Id. 470), because in those cases there.was no evidence that the defendants knew, or ought to have known, of any defect in the posts that held the wash-tub, or in the scaffold.

The defendants also contend that Bond’s negligence was not their negligence. The evidence shows that Bond was the “head engineer,” that “ he had entire charge of all the machinery,” and that “there was not a steam pipe or boiler or any machinery in the house he lmd not charge of.” What is the meaning of the word “charge f ’ Smith in his work on synonyms says that it “denotes delegated care under circumstances of responsibility.” It means that the defendants delegated to Bond the exercise of that care to the plaintiff that the law imposed upon them. This, evidently, is the understanding that Mr. Denning had of Bond’s duties, for he testified that the whole building was in his (Denning’s) charge, but that he had no power or responsibility whatever in reference to the construction of the building, and then added, “Mr. Bond, the chief engineer, had charge of the machinery in the building,” thus placing his lack of power and responsibility in reference to the construction of the building in opposition to Bond’s charge of the machinery. Judge Hilton sought to contradict this evidence by saying that the construction of buildings and the supply of necessary apparatus came under his charge. If by this statement lie meant to say that he retained the general control and supervision of the machinery, then it raised a question of fact that should have been submitted to the jury. If, said the court of appeals in Malone v, Hathaway, “if it was claimed that the defendants had transferred the charge and direction of any branch of the busines and their duties upon him” (a servant) “ it would have been a proper question for the jury.”

In Corcoran v. Halbrook (59 N. Y. 517), the agent, for whose negligence the defendants were liable had “ general charge of the mill and machinery.”

We are of the opinion that the words “ Bond had entire charge of the machinery ” mean that the defendants had delegated to Bond the duty of repairing defective machinery or of putting new machinery in its place, a duty that the defendants owed to the plaintiff, and that therefore, notice to Bond was notice to the defendants.

The judgment and order appealed from are reversed and a new trial is ordered with costs of this argument to plaintiff.

O’Gorman, J., concurred.

Sedgwick, Ch. J.

[Dissenting.] The testimony shows that the defendants secured the services of men of great skill and experience, to build the elevator. They selected the chain. The testimony of one of them gives the particulars as to the means of estimating the sufficiency of the chain.

Whether or not, a chain is strong enough for the contingencies of a proposed service, is not a matter of simple apprehension. It- involves peculiar knowledge and the application of scientific principles.

The engineer, who had charge of the machinery of the defendants, is testified by some witnesses to have said on an occasion before the accident, “ That chain is too light for the work of the house,” and immediately after the accident, “I knew that the chain was too light for the work of the house,” or, “ not strong enough.”

There is no evidence that the engineer had seen any sign of weakness or insufficiency of the chain, unless its size was such a sign. The only fact he knew was that it was a three-eighths chain. At the most then, he judged or he had an opinion, not to say he guessed, that the chain was too light. In considering testimony as to its tendency to prove negligence, if a favorable construction for a defendant is equally admissible with one unfavorable, the former is to be made.

At the most, the defendants are to be charged with what was the fact, viz., that the engineer had the opinion that has been referred to. What would be the duty of a master who knew that his engineer had such an opinion ? It could not be other than to obtain the opinion of the men best qualified to judge of such a matter. This the defendants had already done. They had taken, precautions which showed due care on their part. To call upon them to repeat them because of an opinion imputed to them, would seem to be a form only.

What questions could be left to a jury on these facts % None more favorable to the plaintiff, than whether the defendants, according to the facts of the case, should have relied upon the opinion of the engineer rather that that of the experts. There is no fact to show that the engineer’s opinion should have had the more weight. The case shows it was more prudent to take the judgment of the men of the greater skill and experience. Any other conclusion would make the engineer the final judge. To leave the question to the jury when there was no fact to guide them, v/ould put it within their power to find a verdict without any support, against the rule that the preponderance of the testimony must be for the plaintiff to justify a verdict against the defendant.  