
    John Boardman, Resp’t, v. Walston H. Brown et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 9, 1887.)
    
    
      1. Master and servant—Duty of master—Liability of master.
    The servant takes the ordinary risks of the employment, but the master is bound to furnish" capable fellow-workmen and safe and suitable machinery and appliances for the purpose of the employment. If the machinery is unsuitable or dangerous, the master is liable for an accident occasioned thereby, even if the negligence of a fellow-workman occasioned the same.
    2. Same—Dangerous machines.
    The fact that a dangerous machine could be safely worked by careful men, does not remove the liability from the master if an injury occurs.
    Appeal from a judgment entered on a verdict of a jury in favor of the plaintiff at the Westchester circuit, and from an order denying a motion for a new trial on the judge’s minutes.
    
      E. T. Lovatt, for app’lts; W. B. Davidson, for resp’t; Isaac N. Mills, counsel for resp’t.
   Barnard, P. J.

This case was properly sent to the jury. The general rules which govern the relation of master and servant, in respect to the circumstances surrounding the accident, are well settled.

The servant takes the ordinary risks of the employment, but the master is bound to furnish capable fellow-workmen and safe and suitable machinery and appliances for the purpose of the employment, and that if the machinery is unsuitable or dangerous, the master is liable for an accident occasioned thereby, even if the negligence of a fellow-workman occasioned the same.

The fact that a dangerous machine could be safely worked by a careful man, did not remove the liability from the master. Stringham v. Stewart, 100 N. Y., 516.

The evidence in this case discloses that the defendants were contractors in the excavation of a tunnel for the new aqueduct for New York. The shaft had been sunk to the bottom of the proposed tunnel 385 feet from the surface.

The tunnel was extended both ways from the shaft; and the material all came up the shaft.

The men went down and came up in the same way.

The defendant had provided a bucket which was let down from the surface, and four or five men rode in the bucket at once.

Some twenty feet above the bucket there was what is termed a follower, being cross pieces of timber which descended with the bucket, as this follower was confined in a frame or groove on the sides of the shaft. The bucket was not attached firmly to the follower, but was so made that if the follower for any reason failed to descend by its own weight, the bucket would continue, because the rope which went through the follower moved independently through an aperture in the follower. If the follower descended, the purpose of it was to confine the sway of the bucket to a sway of twenty feet, instead of the possible sway from a depth of over three hundred feet.

On the occasion in question the follower got caught, did not follow, and, after the bucket left it, which should have supported it, it fell and detached the bucket from the swivel support by breaking the rope.

Four persons were killed at once, and the plaintiff was permanently injured.

The appliance was neither reasonably safe or prudent.

The follower should have been attached to the bucket in some way so that when the follower stopped the car would stop. This would give notice at the top of the shaft to stop lowering the bucket and the attachments until the obstruction was removed.

The judgment should be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.  