
    James Gardner, Appellant, v. Westinghouse Electric and Manufacturing Company, Respondent.
    Second Department,
    November 18, 1910.
    Master and servant — negligence — injury to painter by fall of elevated ■ structure — defects not discoverable on inspection—proximate cause of accident.
    An employee who was injured while engaged in painting an elevated structure used to suspend cables for the electrical equipment of a railroad cannot recover upon the .ground that his master was negligent in allowing ladders to be placed against the suspended wires or in failing to provide a proper platform from which to do the work, when in fact the proximate cause of the accident was not the use of the ladder or the failure to furnish platforms, but the breaking of an anchor iron which held the entire structure and had a hidden defect not discoverable upon inspection.
    Appeal by the plaintiff, James Gardner, from an order of the Supreme Court, made at the Westchester Trial Term and entered in the office of the clerk of the county of Westchester on the 30th. day of November, 1908, setting aside the verdict of a jury theretofore rendered in favor of the plaintiff for $2,500, and dismissing the complaint, and vacating a judgment entered upon such verdict, and also from a judgment entered in said clerk’s office on the 16th day of December, 1908, upon said order dismissing the complaint.
    
      Sydney A. Syme, for the appellant.
    
      Ambrose F. Mo Cabe, for the respondent.
   W oodward, J.:

The plaintiff, who brings this action to recover for personal injuries alleged to have been caused through the negligence of the defendant, was employed with others in painting the superstructure erected by the defendant in electrically equipping the New York terminal of the New York, New Haven and Hartford Railroad Company at Wakefield Junction on the 19th day of May, 1907. The construction used at this point consisted of steel crossbridges at intervals of 300 feet, from which were suspended heavy cables known as messenger wires, which were suspended so that there was a drop of several feet in the center, and from these messenger wires the trolley feed wires were carried by arms at a practically uniform .level. The work in progress at the time of- the accident was the painting of these -messenger wires and the structure generally, and the method employed was to place a train of ordinary box cars under the structure upon the railroad tracks, and by means of platforms and ladders the men. climbed up and did their work, after which the train was moved to a' new section. It appears from the evidence that at and near the center of each section the workmen could reach the structure from the .car tops, while as they neared the crossbridges they were obliged to use platforms of-a .temporary character or ladders. When ladders were used two men were employed with each ladde’r, one to hold and steady the ladder and-the other to climb up and do the painting. On the day of the accident the plaintiff took one of the ladders provided by the defendant, and placed it against one of the wires composing the superstructure^ and acting as helper took his place at the foot of the ladder, while another member of the painting crew climbed upon the- same and began the work of painting. The work had been going on but a few minutes when the wire on which the ladder was leaning gave way, and the painter fell upon the plaintiff, producing injuries for which a jury has awarded him a verdict of $2,500. The learned court reserved, without objection or exception, the defendant’s motion for a nonsuit at the close of the evidence, and submitted the case to the jury. A verdict for $2,500 being brought in, the- court, on motion of defendant, set aside the verdict and granted the motion previously made for a nonsuit. The plaintiff, appeals from 1 the order granting the motion and from the judgment entered thereon.

The plaintiff’s theory of the accident is that the defendant was negligent in not providing a car with a platform high enough to enable the painter to do this work without the use of a ladder, and that it was also negligent to permit placing the ladders so that they would lean upon the wires.- The plaintiff , offered no evidence to show that the method employed by the defendant was not reasonably safe, unless this fact was to be assumed from the mere fact of the happening of the accident. It was in evidence that -the end cars in the train used were supplied with platforms of a more or-less permanent character, which were high enough to enable the painters to perform their work at and near the bridges, and there is no evidence that any one refused to permit the use of either or both of these cars at the point of the accident on the day in question. The defendant appears to have supplied platforms and ladders, and the employees seem to have been in the habit of choosing their own appliances out of the interior of the cars and placing them upon the cars and using them as best suited their own ideas as to the requirements. There is some suggestion that these ladders were taken from the car on the day of the accident under the directions of the defendant’s superintendent (the action being brought under the Employers’ Liability Act, Laws of 1902, chap. 600), but it does not appear that the alleged superintendent directed that the ladders should be used at the point of the accident, or that he made any suggestions in reference to the matter, except that he called upon the crew generally to get out the appliances and to hurry up with the work.

But assuming that there was some such direction, and that some degree of negligence might be spelled out, the defendant took upon itself the obligation of explaining the accident, and ,its evidence stands undisputed that the accident was the result, not of any defect' in the ladder, not in any weakness in the wires which were used to support the ladder, but of a latent defect, which no amount of inspection would have discovered, in an anchor iron used to hold the wires to the crossbridges; that the breaking of this anchor iron caused the entire superstructure in the section to fall,'with the result that the plaintiff’s fellow-servant fell upon him,.causing the injuries. It thus appeared beyond question that the proximate cause of the accident was not the use of the ladder, but the breaking of an anchor iron, designed to maintain the whole superstructure within the 300 feet section, and which was entirely adequate for the purpose, except for the' fact that i.t contained a latent defect which no inspection would have disclosed. No negligence is suggested in this connection; it was stipulated.in open court that the “ Westinghouse Company used every effort to get the best iron possible, and that it did it in this case; that it properly.tested this piece of iron when it went out of the place along with the others.” This being so, and the proximate cause of the accident being the breaking of this iron, how is it to be said that the defendant neglected any duty which it owed . to the plaintiff ? The test is not whether the accident might not have happened if the defendant had iised permanent platforms upon its cars for this work instead of ladders, hut whether the "defendant had neglected a duty: ¡No matter how careless it might have been for the defendant to use ladders for this work, if the accident was not caused by .and due to the use of a ladder, then there is no.-actionable negligence in this respect; The negligence, to be actionable, must be. in ■ relation to the matter causing the accident, and in this case the evidence is undisputed, not only- that the accident was due to a látent defect in the anchor iron, but that there was. no negligence in respect to such iron. Under such circumstances it was the duty of - the court to grant a nonsuit, upon the defendant’s motion, and this duty was none the less obligatory because the learned court delayed' decision upon the motion until after the jury had passed upon the issue thus sought to 'be raised.

The order and1 judgment appealed from should be affirmed, with costs. '.

Present — Hirschberg, P.. J., Woodward, Burr, Rich . and Carr," JJ. " '

Order and judgment unanimously- affirmed, with costs:  