
    Joseph Kwiatkowski, Appellant, v. Nichols Copper Company, Respondent.
    Second Department,
    October 4, 1912.
    Master and servant — negligence — injury to employee by starting of car used in factory — evidence — nonsuit — common-law duty of master —■ Employers’ Liability Act — defect in railroad track — when superintendent not required.
    While the plaintiff, an employee in a factory, was starting a car used to move heavy materials, another ear suddenly started, colliding with the end of an non bar which the plaintiff was using to push the car ahead, and his hand was crushed between the oncoming ear and the end of the bar. In an action to recover for the injuries sustained, evidence examined, and held, that a dismissal of the complaint should he affirmed.
    
      ■ At common law the master is only required to use reasonable care to provide reasonably safe tools and appliances, while under the Employers’ Liability Act he is to guard against defects in the ways, works and machinery.
    It is not a defect in a railroad track that it is constructed upon a slightly descending grade, nor can it be said to be a defect, within the meaning of the act, that a ear, designed merely for moving heavy bodies about a factory by the use of hand power, is not supplied with safety brakes and devices.
    The operation of such ears about a factory does hot require the services of a superintendent or foreman.
    Appeal by the plaintiff, Joseph Kwiatkowski, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 9th day of October, 1911, upon the dismissal of the complaint, at the close of plaintiff’s case by direction of the court, on a trial at the Queens County Trial Term.
    
      Harry J. Rosenson, for the appellant.
    
      Edward P. Mowton, for the respondent.
   Woodward, J.:

The plaintiff had his left hand crushed in such a manner as to necessitate the amputation of one . finger, and producing other permanent defects, and brings this action to recover damages from the defendant under the provisions of the Employers’ Liability Act. (See Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14.) The' learned court, at the close of plaintiff’s case, dismissed the complaint because of a lack of proof, and the plaintiff appeals to this court.

The defendant operates a copper working plant, and in- the conduct of its business it has arranged small tracks, supplied with simple flat cars, on which hot. copper bars are transported to the various parts of the factory for treatment. On the occasion of the accident resulting in the plaintiff’s injury a collection of these small cars had been made upon the tracks, and, "as was the custom, the plaintiff with four other men in his gang was sent to move these cars down the track to a túrntable, where the direction of the cars was changed' and they were then sent on their way. The plaintiff refers to this track as a decline, but the evidence seems to indicate that it was a narrow-gauge railroad track with something of a fall in grade, probably about five per cent. The custom was to group these cars upon the tracks, blocking the forward wheels of the first car, and permitting the others to stand without blocking. Two men with iron rods, with hooks at the end, would get in front and draw upon the car, after the blocking was removed, and two others would follow, pushing with like iron bars, while a fifth used an ordinary crowbar to assist in starting the car. The plaintiff had worked at this same employment, under exactly the same conditions, for a period of three 'years, and oh the occasion of the accident the three head cars had been moved, and the gang were at work moving the fourth car when, for some unexplained reason, the fifth car started down the grade, colliding with the end of the iron bar which the plaintiff was using to push the fourth car, and crushing his hand between the oncoming car and the end of the bar. There is not the slightest evidence to show that any other car ever acted in a similar manner during the three years that the plaintiff had worked there, or at any other time; no evidence is offered to show why the car did move, nor is there any evidence to show that it was not put in motion by some of the plaintiff’s fellow-servants. One witness testifies that he did not touch the car to move it, but here the testimony ends; no one attempts to say that it was not moved by some of the many men who were employed in the general work, and certainly no one pretends that the car was moved by the defendant, or by any one for whom it was responsible. The negligence complained of is that the defendant did not provide a reasonably safe place for the plaintiff to work, which is purely a common-law ground, which could not be helped out by the service of the notice required by the Employers’ Liability Act. But there is no evidence to support this ground of complaint. The place furnished was the defendant’s factory,' and there is not a particle of evidence that this factory was not as safe as the practical requirements of the business would allow. It is, however, contended that there was negligence on the part of the defendant in that it did not equip these cars or the rails of the track with safety appliances to prevent the possibility of their starting, but this assumes a duty on the part of the master to make the accident impossible, while the law only requires that he should use reasonable care to provide' reasonably safe tools and appliances as his common-law duty, while providing for defects in the ways, works and machinery under the Employers’ Liability Act. But there was no defect in the cars or in the track. It is not a defect in a railroad track that it is constructed upon a slightly descending grade, nor can it be said to be a defect, within the meaning of the act, that a car designed merely for moving heavy bodies about a factory by the use of hand power, is not supplied with safety brakes and devices. The cars, so far as the evidence discloses, were perfect cars of their design and make; they were just such cars as were designed and made for this class of work, and were in the same general condition in which they had been from the time they were placed in the factory, and no amount of inspection could have discovered any defect in them such as is contemplated by the statute. Being reasonably safe for the purpose for which they were used, and not having any defects which are pointed out, it is plain that the court did not err in holding that there was a failure of proof in support of the. allegations in this respect. The only other claim of neglect made by the plaintiff was a failure to furnish and place a competent superintendent or foreman in charge of such work. This certainly negatives the present contention that the defendant’s superintendent was negligent in directing the work, and that the court erred in rejecting evidence as to the character of the employment of a person who is now sought to be held out as a foreman or superintendent. It is entirely obvious that the character of work being performed did not require the services of a superintendent or foreman; it was the most ordinary character of labor, and any man of common intelligence was competent to perform it without special instructions. But, if there was a foreman present and acting in the matter, it does not appear that he gave any directions, or that he in any manner caused the fifth car to move, so that the case is devoid of evidence of the neglect of any duty which the defendant owed,to the plaintiff.

It does appear that the first car in the series was blocked by a piece of wood, and no reason is suggested why this simple block could not have been used on the second, the. third, the fourth and the fifth car in turn, thus effectually preventing the injury to the plaintiff. It is not suggested that the defendant’s superintendent or anyone else objected to the use of this block, which the defendant must he assumed to have furnished, and with reasonably safe tools and appliances at hand it is the duty of the servant, not of the master, to make reasonable use of the same for the protection of himself and his fellow-laborers. The plaintiff did not bring his case within the provisions of the Employers’ Liability Act, and his evidence wholly failed to establish a cause of action.

The judgment appealed from should be affirmed, with costs.

Present — Hirschberg, Thomas, Carr, Woodward and Rich, JJ.

Judgment unanimously affirmed, with costs.  