
    Harry C. Schlappendorf, Respondent, v. American Railway Traffic Company, Appellant.
    Second Department,
    January 31, 1911.
    Master and servant — negligence — defective appliances — proof necessary to recovery — notice — failure to inspect — fellow-servants — defect not causing accident —- res ipsa loquitur — proof not justifying . recovery.
    A master cannot be charged with liability for injuries to a servant upon mere proof that something was out of order in the machinery used by him; there must be proof either of- actual notice of the defect, or of a condition which would .result in notice if there had been a reasonable inspection of the machinery by the master.
    
      A laborer employed by a master engaged in disposing of city refuse and a person employed by him to operate an electric motor controlling the hoisting appliances are fellow-servants, and the master is not liable for the negligence of the latter in a common-law action.
    This is true although the servant operating the motor after notifying the master’s superintendent that a clip holding the loop in the hoisting cable had become loose, continued to use the appliance, if there be no proof that the superintendent gave any directions as to the further use of the appliance. It will not be presumed that the superintendent ordered the motorman to continue to operate the appliance merely because he continued to do so, where it appears that he thought the other clamps holding the cable were sufficient, as that explains his action.
    A defect in some part of an appliance does not create a liability unless that particular defect was the .cause of the accident.
    Thus, where a loop in a hoisting cable was secured not only with clamps of sufficient' strength to hold it, but also with clips, the latter not being necessary to make the appliance reasonably safe but an extraordinary precaution, there can be no recovery for an injury occasioned by the slipping of the loop upon mere proof that one of the superfluous clips had become loosé.
    While it cannot be said that the rule of res ipsa loquitur is never applied to cases between master and servant, it is'rarely so applied.' As a general rule, in the absence,of proof showing negligence, there is a presumption that the master has done his duty, and mere proof of an accident, even of an unusual character, does not destroy this presumption.
    A master is not liable simply because some part of an appliance became out of order. It must have been out of order long enough to charge him with negligence in failing to discover it by proper inspection.
    Where it appears that there were frequent inspections of appliances used by the master, and one inspection was had a day or two before the accident, and there is no proof that the clamps holding the loop in the cable became loose before ■ the accident, it will not be presumed that the clamps became loose merely because a pulley had a tendency to strike against a clip which became loose so as to transmit the force of the impact to the clamps through the cable.
    Appeal by the defendant, the American Railway Traffic Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 31st day of March, 1910, upon the verdict of. a jury for $11,000, and also from an order bearing date the 30th day of March, 1910, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.
    
      James J. Mahoney, for the appellant.
    
      Frederick N. Van Zandt, for the respondent. ;
   Carr, J.:

The plaintiff has recovered judgment' against liis former master, the defendant, for the sum of $11,142.89, for personal injuries resulting from the alleged negligence of .the master. The action was brought under the common-law rules of liability. The negligence asserted consisted of an alleged failure to furnish the plaintiff with reasonably safe appliances in doing the work in which he was injured. The plaintiff was a young man of no particular experience, and his work for the defendant was practically that of an ■ordinary laborer. ■ Before entering upon this employment he had no acquaintance with its methods, and four days after the beginning of his service the accident occurred. The defendant was engaged in the business of gathering up and carrying away ashes and similar refuse material which accumulated from time to time in the borough of Brooklyn.- As a part of its agencies it maintained a shed or depot fronting on a public street. " Into this shed it ran cars laden with the refuse material. On the floor, space of the shed it had constructed sixteen deep pockets separated from each other by lumber construction. These pockets were used to contain large steel buckets, of square construction, which, when either full or empty as the case may be, were lifted out'of or deposited in the pockets by means of an overhead traveling crane, which was operated by an electric motor. By means of this crane a full or empty bucket was moved from one pocket to another as the needs of the work required. The buckets when full' of ashes weighed from six to seven tons. On each side of the buckets, about four feet below the top, was a projecting lug. To move the bucket a hook was attached to each lug. These hooks were in turn attached to a cable which fitted into a large hook attached to a pulley. Through this pulley passed a steel cable. One end of the cable was anchored permanently to a revolving drum, the other then passed through a clamp which affixed the cable to another part of the crane itself, and the free end of -the cable emerging from the clamp was doubled back against the portion of the cable below the point of entry to the clamp, and both were tied together with two steel clips. • The entire cable, thus constructed, formed a. loop, in the bed of which the pulley rested as the buckets were being raised or lowered. The accident happened while a full bucket was being lowered into a pocket- The plaintiff was standing by as the bucket had descended half way into its pocket and he was but a few inches away. As the bucket was descending it appears to have come down slantingly. Something happened to the overhead mechanism and the bucket fell, striking the plaintiff’s feet a,s it descended and badly' crushing them. After the accident it was found that the end of, the cable passing through the clips and the clamp had become loose, thus releasing the descending bucket from the support of the loop which ordinarily passed through the pulley which held the main hook which was used to raise or lower. In other words, one end of the cable loop got loose and the loop ceased to be. The obvious cause of this happening was that the clamp and the lower clips failed to hold securely the parts of the cable which passed through them. Why this failure happened at this very time is not made clear by any direct evidence. The crane seems to have been of an approved type.' The clamp appears to have been designed .as sufficient. in itself to secure the end of the cable which passed through it, and no lower clips were furnished by the manufacturers of the crane, similar cranes being operated safely without these lower clips. The clips in question were applied by the defendant as an additional precaution and factor of safety. Though there were two clips used, in addition to the clamp, the proof is that one clip, in itself, would have been sufficient to sustain the weight of the loaded bucket. The clips were locked, to the cable by bolts and nuts,- and the clamp was likewise locked to the crane.

The plaintiff’s theory of the accident is that all these bolts and nuts had become loose-and the defect so arising could have been discovered by the master through reasonable inspection of the appliance. So far as the proof goes, the master maintained a system of inspection, and the very appliance in question was shown to have been inspected two days before the accident without any defect having been discovered. It is quite true that had everything connected with the appliance been in good order at the tune of the occurrence, the accident would not have happened, and this was so testified at the trial. The difficulty is that the defendant’s liability does not rest upon the simple fact that something was out of order at the moment, but requires proof, either of actual notice or off the existence of a condition, whicli ivonld result in notice if there had been reasonable inspection of the appliance on its part. The plaintiff offered proof to show that the master had actual knowledge that the appliance was out of order at least an hour before the happening of the accident, and was, therefore, guilty of negligence in continuing its use until a-repair was made. It appears that on the morning of the accident the lowest of the clips on the clamp side of the cable was observed to be loose and to slip up and down on - the cable as the crane was being used to move the buckets'. ' This was first noticed by one of the laborers, who was a-man of some experience in that work. He called the fact to the attention of one Plank, who operated the electric motor which controlled the hoisting appliance. Plank, .after noticing the condition of this clip, telephoned to one Burns, an employee of the defendant in its main office, telling him about the clip in question. Burns is described as a dispatcher,” and it appears that he was the one who gave orders as to the arrival and departure of the cars which carried the material to and from the .depot in question. Notice to Burns is claimed by the plaintiff to have been notice to the defendant. The case ' was submitted to the jury on the theory that Plank was a fellow-servant and that notice to him did not charge the defendant. It does not appear in the proof what directions Burns gave, -if any, to Plank as to the further use of the crane, but Plank went on in the meantime as before, lifting some fourteen filled buckets into and out of. pockets until the accident happened. If the continued use of the crane in the meantime was negligence, whose negligence was it? Was it that of th,e master, or was it that of Plank, who wag treated as a fellow-servant ? Assuming Burns to have been the alter ego of the defendant, the proof is silent as to what directions, if any, he gave to Plank as to the continued use of the crane until some one came to make repairs. From the fact that. Plank went on using the crane, the learned counsel for the respondent argues that. Plank must have been so instructed by.Burns. On this record, however, no presumption of this, kind is permissible. Plank testified that he thought the clamp was sufficient in itself without the clips, and such an opinion on his part would sufficiently explain why he went on in the meantime using the crane after he telephoned Burns. For Plank’s negligence the defendant was not liable, as at common law he was the plaintiff’s fellow-servant.

The foregoing discussion as to Flank’s negligence assumes for . the time being that the trouble with the lower clip was the cause of the accident. Unfortunately for the plaintiff the actual cause of the accident is not shown. A defect in some part of the appliance would not create liability unless that particular defect itself was a cause of the accident. As far as the proofs go, the presence of these clips was not necessary to make the hoisting appliance reasonably safe. They appear to have been applied as a precaution to make the appliance more than ordinarily safe. They were put on the cable, not as a matter of ordinary care, but as a matter of extraordinary care. As the proofs are, the clamp alone would have been equal to the requirement of reasonable safety: If there was anything wrong as to the clamp» and its bolts and nuts, the piroofs are silent on that point. Perhaps the defendant could have explained where the real trouble lay, as one of its empiloyees examined the appliance shortly after the accident. He was not called as a witness, however.

It seems obvious that, unless the rule of res ipsa loquitur applies, there was insufficient proof to send this case to the jury. It is argued by the respondent that the rule in question did apply to the circumstances of this case; The basis of this argument rests upon the assumption that were the clamp arid clips, or the clamp alone, in good order, the accident would not have occurred in the ordinary course of human experience.

The question of the application of this rule to an accident forming the basis of an action between master and servant is not without difficulty. While it would be going too far. to say' that the rule of res ipsa loquitur is never to be applied in a case between master and servant, it is quite true that it has been rarely so app»lied. As a general principle of the law, in the absence of proof showing negligence, there is a presumption that the master has done his duty. The mere proof of an accident, even of an unusual character, does not destroy this presumption. The master is not liable simply because some part of an appliance has become out of order. . It must have been out of order long, enough to charge him with negligence in failing to discover it by proper inspection. While the happening of the accident-may suggest the existence of a defect, it does not alone in itself give rise to a presumption .of negligence in failing to discover the defect seasonably. (Starer v. Stern, 100 App. Div. 393; Stackpole v. Wray, 99 id. 262; Welsh v. Cornell, 168 N. Y. 508; Dougherty v. Milliken, 163 id. 527; Rende v. N. Y. & Texas Steamship Co., 187 id. 382.; Henson v. Lehigh Valley R. R. Co., 194 id, 205.)

On the theory that the accident was caused by a loosening of the bolts in the clamp and both - clips — and as. to this there is. no proof except as to one clip—-the plaintiff gave proof that in some of the uses of the crane in question there was a tendency on the part of the pulley to strike against the clips and thus transmit force of impact to the cable, which in turn was transmitted to the clamp, thereby causing a probable loosening of the bolts in the clamp, which would result finally in such a loosening of the clamp itself that -it would not- hold the cable which passed through it. Under these circumstances, it was claimed, there arose a necessity for frequent inspection of tins part of the appliance. Proper inspection would have discovered the loosening of the bolts. From the fact that the bolts were -loose at the time of the accident, it is contended that there was either no inspection or improper inspection. All of this argument assumes, necessarily, that the bolts of the clamp were in fact loose some considerable time before the accident. As to this there is no proof, however, and unless this assumed fact can rest upon a presumption, it has no basis. It appeared from the proofs given by the plaintiff’s witness Plank that there was frequent inspection of the appliances, one inspection being had a day or two before the accident.

. It would appear, -therefore, that there was not sufficient evidence to justify the submission to the jury of the question of the. defend-, ant’s negligence. •

The judgment .and order should be reversed and a new trial granted, costs to abide the event. -

Jenks, P. J., Hirschberg, Thomas and Woodward, JJ., concurred-.

Judgment and order reversed and new trial granted, costs to abide the event.  