
    Frank Harley, Resp’t, v. Buffalo Car Manufacturing Company, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 10, 1894)
    
    1. Master and servant—Appliances.
    The master cannot be made liable for an injury to one of his servants if, in selecting the particular appliance, where several are in use, he takes the one which, according to his judgment, is the best and most suitable, guided by his experience and observation and those of the skilled men in his employment.
    2. Same—Co servant.
    Where the master keeps constantly on hand for use by his servants a sufficient supply of proper appliances, the failure to use them is the negligence of a co-servant for which the master is not liable.
    3. Same—Defect.
    He is not liable for imperfection in manufacture or material, where it is not visible to ordinary observation.
    4. Evidence—Opinion.
    The opinion of skilled and experienced experts as to the safety of a belt fastener is incompetent.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order made October 4, 1892, whitih affirmed a judgment in favor of plaintiff entered upon a verdict.
    The nature of the action and the facts, so far as material, are stated in the opinion.
    
      Adelbert Moot, for app’lt; George Wing, for resp’t
    
      
       Reversing 48 St. Rep. 58.
    
   Earl, J.

This action was brought by the plaintiff to recover damages against the defendant for a serious injury received by him from the breaking of a belt used to move machinery in the defendant’s shop at the city of Buffalo.

The principles of law applicable to such a case as this have exposition in many decisions of this court. It is sufficient to cite the following: Devlin v. Smith, 89 N. Y. 470; Burke v. Witherbee, 98 id. 562 ; Sweeney v. Berlin & J. Envelope Co., 101 id. 520: Bajus v. S., B. & N. Y. R. R. Co., 103 id. 312 ; 3 St. Rep. 96; Hickey v. Taaffe, 105 N. Y. 26; 6 St. Rep. 426; Stringham v. Hilton, 111 N. Y. 188; 19 St. Rep. 621; Buckley v. G. P. & R. Mfg. Co., 113 N. Y. 540; 23 St. Rep. 618; Dobbins v. Brown, 119 N. Y. 188; 28 St. Rep. 957; Cosulich v. Standard Oil Co., 122 N. Y. 113; 33 St. Rep. 287; Hart v. Naumburg, 123 N. Y. 641; 33 St. Rep. 607; Kern v. De Castro, 125 N. Y. 50; 34 St. Rep. 363; Carlson v. Phenix B. Co., 132 N. Y. 273; 43 St. Rep. 942.

The master does not guarantee the safety of his servants. He is not bound to furnish them an absolutely safe place to work in, but is bound simply to use reasonable care and prudence in providing such a place. He is not bound to furnish the best known appliances, but only such as are reasonably fit and safe. He satisfies the requirements of the law if in the selection of machinery and appliances he uses that degree of care which a man of ordinary prudence would use, having regard to his own safety, if he were supplying them for his own personal use. It is culpable negligence which makes the master liable, not a mere error of judgment.

Here the belt was fastened at one of its splices with what was called the Buffalo belt fastener, and while the machinery was running the fastener gave way and the belt parted and caused the injury to the plaintiff. It was shown upon the trial that there were several kinds of belt fasteners in use ; that all of them were liable to break; that no one could foresee when they would break, and that they generally broke under some unusual strain which might come from a variety of causes. The witnesses differ as to which of the fasteners in use was the safest and best, some of them giving preference to one kind and some to another. The evidence shows that one kind would be better on some belts and another kind better on other belts, the fact of safety and utility depending upon the machinery upon which the fastener is used, the place where it is used, the work which is to be done, and the strain to which it is to' be subjected. A number of witnesses who apparently had had the greatest experience with the Buffalo fastener gave it the preference for safety and efficiency. It was a patented article and had been manufactured, sold and used for several years before this accident. It was manufactured in Buffalo, and one of the persons engaged in its manufacture testified that these fasteners were extensively sold all over this country and in Canada, and that some of them were exported; that the sales of them had constantly increased until they reached in value $40,000 a year, and thus'it is probable that several hundred thousand of them were sold and put to use every year. The skilled workmen in the employment of the defendant who had used them for several years testified that they were convenient, useful, efficient and safe. It does not appear that they had been less safe than any other fastener in use, nor does it appear that any serious accident had ever before happened from the breaking of any belt fastener.

Hnder such circumstances how can it be said that the defendant violated any duty it owed to the plaintiff ? It was impossible from the evidence to determine whether these fasteners were or were not the best in use for such "a belt and machinery as the defendant had at the time and place of the accident. Suppose a master needing fasteners in his shop makes inquiry among men of skill and experience as to the best kind of fasteners to use, and he is informed by some that one kind is the best, and, by others that another kind is the best, and so on, and he finally makes a selection, using his best judgment; and suppose it should turn •out that it was not the best, could he, under such circumstances, be held liable for an injury received by a person in his service from the parting of a belt on account of the insufficiency of the fastener under any particular strain to which the belt had been subjected? But we may go one step further. Suppose, under such circumstances, he purchased fasteners for use in his shop, which, according to the judgment of his skilled workmen were found to be useful, convenient and safe, and the very best in use, can he then be charged with negligence for continuing to use them and be made liable to one who is accidently injured by the parting of a belt? Suppose, under the circumstances which exist here, the defendant had adopted one of the other fasteners for this particular belt and an accident had happened from its parting, there would have been substantially the same evidence for the jury and the same claim could have been made which is now made, that there was a question of fact for the jury as to its negligence in making the selection. This judgment cannot be affirmed without subjecting the master in such a case as this to the risk of liability for injuries from the parting of a belt moving machinery in his shop, whatever fastener he may use, because if he uses one kind, according to the evidence in this case, it is easy to find persons who will testify that from their experience and observation some other kind was better.

It must always be true that where several appliances are in use, each of which is regarded by men of skill and experience as safe and proper, the master cannot be made liable for an injury to one of his servants, if in selecting the particular appliance he takes what, according to his judgment, is the best or most suitable, guided by his experience and observation and those of the skilled men in his employment.

Upon the evidence in this case, it cannot even be determined that the managers of the defendant erred in their judgment in the selection of this kind of fastener. But if there was an error in judgment, it was not such as to constitute that degree of negligence and want of prudence which, under the rules of law above cited, can impose liability for such an accident as this.

If it should be claimed that, in splicing the belt, a sufficient number of these fasteners was not used to make it safe and secure, it may be answered that the proof does not show that there was not a sufficient number; and even if there was not, that circumstance would not impose liability upon the defendant in this action, because it furnished and kept on hand in its shop a large quantity of the fasteners for use by its employees, and when a belt parted, as they were liable to frequently, they were bound in the exercise of their skill and judgment, to splice it and to use a sufficient number of fasteners for that purpose; and if they did not, then the negligence was that of a co-employee, and on that account the defendant could not be held liable.

If there was any weakness in the particular fasteners used in this belt, from imperfect manufacture or imperfect material, such imperfection not being visible to ordinary observation, the defendant could not be made liable on that account, as they were the same kind of fasteners which they had used for years with entire success and safety and which they had purchased from the manufacturers engaged extensively in their production and sale.

Upon the trial of the action the main issue to be determined by the jury was whether the Buffalo belt fastener was suitable and safe for fastening the belt in question, and the plaintiff was permitted, against the objection of the defendant’s counsel, to ask several of his witnesses their opinion as to their safety and fitness. We think these questions were objectionable. A sample of this belt fastener was produced before the jury, and also a piece of belt showing how the fastener was used. Its size and mode of use was apparent to the jury. It was competent for the plaintiff to prove the strain to which it would be subjected, its liability to break and all the experiences of persons who had used it; and thus all the facts could be placed before the jury from which they could determine whether or not it was a suitable and safe belt fastener. It cannot be proper to have the issue determined by the opinions of experts, however skilled and experienced they may be. The facts should be placed before th& jury and they should be left to determine whether the belt fastener was safe or otherwise. Van Wycklen v. City of Brooklyn, 118 N. Y. 424 ; 29 St. Rep. 790; Roberts v. N. Y. El. R. R. Co., 128 N. Y. 455; 40 St. Rep. 454; Schneider v. Second Avenue R. R. Co., 133 N. Y. 583; 44 St. Rep. 680.

We are, therefore, of opinion that this judgment should be reversed and a new trial granted, costs to abide event.

All concur (Andrews, Ch. J., on exceptions to evidence), except Bartlett, J., dissenting.

Judgment reversed.  