
    Katherine Griffin, Appellant, v. Michael L. Flank, Respondent.
    First Department,
    May 21, 1909.
    Master and servant — negligence — injury by fall of pulley — facts raising question for j ury— failure to use lock nuts — inspection — duty cannot be delegated.
    Action against a master to recover for personal injuries. The plaintiff, employed . at an embroidering machine run by power, was injured by the fall of a wooden pulley from a shaft above. The portions of this pulley were held together by bolts which, if not kept tight, would allow the pulley to leave its bush and fall from the end to the shaft. The foreman testified that he knew bolts were liable to loosen and that it was his duty to tighten them. The condition of the pulley after the fall showed that the bolts had loosened. On all the evidence, held, that it was for the jury to say whether the master was liable.
    
      As a master is not required to provide the best instruments and machinery known, he was not required to provide- such pulley with lock nuts in the absence of evidence that they were ever used on pulleys oí that kind.
    A master’s duty to make proper inspection cannot be delegated, and the mere fact that he employs a competent man to inspect does not relieve him from -liability.
    Appeal by the plaintiff, Katherine Griffin, from, an' order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 16th day of December, 1908, affirming a judgment of the City Court of the city of Hew York, entered on the 25th day of May, 1907, which dismissed the complaint upon the merits.
    
      Summer B. Stiles of counsel [Wellman, Gooch & Smyth, attorneys], for the appellant.
    
      Alexander Rosenthal of counsel [Rosenthal, Steckler & Levi, attorneys], for the respondent.
   Clarke, J.:

This is an appeal from an order of the Appellate Term affirming a dismissal of the complaint at the close of. plaintiff’s case in an action in the City Court to recover damages by an employee against his employer. The trial judge dismissed the complaint because he believed he was compelled to do so by the decision of the Appellate Term on the former trial, reversing a judgment entered on a verdict for the plaintiff reported in 48 Miscellaneous Beports, 617. The court there said: “ There being no evidence of any negligent act or omission on the part of the defendant, the learned court applied the rule of res ipsa loquitur and charged the jury that plaintiff -had made out a prima facie case of negligence by simply proving that the wheel fell from the shaft and struck her. In this we consider that error was committed. * * * In. the present case there was absolutely nothing in the attendant circumstances to suggest that defendant had failed in any duty which he owed to plaintiff. * * * As the facts were disclosed by the evidence, there was no room for the application of the rule invoked by the court. Since this error, was fundamental, there being no evidence of negligence, if' the fact that the pulley fell was not in itself such evidence, it follows -that the judgment must be reversed and a new trial granted.”

A different case is presented on ' this record. The complaint alleges that it was the dirty of the defendant'to- provide á good, safe and secure place for the plaintiff to perform her work, and to provide safe and suitable machinery for the plaintiff’s use and to beep the same in proper repair, to. inspect or cause to be inspected the machines and machinery, but that the defendant disregarding his duty .provided an unsafe and defective place, failed to inspect or cause to be inspected the machinery, and caused to be used, maintained and operated a shafting and fly wheel and the. equipments and attachments thereto belonging, operating the embroidering machines which were defective and unlit for the purposes for which they were used.

The evidence showed that the plaintiff’s position at work was at an embroidering machine run by power.' She was located -under a wooden pulley; known as a split pulley, about eighteen or twenty inches in diameter with three-inch face, weighing from ten to twenty pounds, located on the end o'f the shaft which was about six feet over her head as she sat. This- pulley was' divided in the center from circumference to circumference, the. two several parts being attached to each other by cross pieces-or spokes, held together by two or four bolts about a half or five-eighths of an inch in diameter with a thread about an inch and a half in length at each end of the bolt with a nut on each eild screwed up tight. • Four pieces of wood called; a bush were set up within- the hole.in the center of the pulley and being so set up and the -nuts being properly screwed down fastened the pulley to the shafting. The pulley wa's just beyond the last anchor or support of the shafting. At the extreme end of .the shaft there was what is called-a collar ¡set -Upon said shaft by a Countersunk screw. This collar was about eight inches from the pulley. There is evidence by an expert that the proper way of setting up this collar would be close against this pulley so that it would be held in position on one side by the collar and on the other by the anchor. The effect of the rotation is to force the pulley away from the anchor • and towards the end of the shaft. It is in evidence that the nuts on the bolts, which hold the two parts of the pulley in position become loosened by the effect of the weight and the rotation and have to be tightened from time to time; that if the nuts loosen sufficiently the two halves of the pulley will separate so far that the bush will fall out and, the aperture so caused being large enough, then the rotation, causing the pulley to slide towards the end. of the shaft, will take it over the collar and it will fly off. This is what happened. After the accident the pulley was found on the floor with the nuts loose, the halves separated and the bush out. In falling the pulley hit the plaintiff, causing the injuries complained of.

The appellant claims that a question of fact was presented: First, in regard to the proper installation of the pulley. The testimony of the expert called by the .plaintiff was to the effect that the proper installation required the collar to be close against the pulley and that if so placed, even if the nuts loosened up, the bush could not have been forced out. He also testified that a lock nut should have been used to secure the two halves of the pulley. But the master is not required to provide the best instruments and machinery known, and so far as lock nuts are concerned, there is no evidence that such were ever used on pulleys of this kind, and, as the defendant procured machinery of the ordinary kind from a reputable firm who installed it in the usual way, his duty seems to have been performed. Second, on the question of proper inspection. This is the master’s duty which cannot be delegated, and the fact that the master employs a competent man to inspect does not relieve the master of liis liability, if the inspector does not properly inspect (Byrne v. Eastman’s Co. of N. Y., 163 N. Y. 461 ; McGuire v. Bell Tel. Co., 167 id. 208.) This accident occurred twenty minutes after eight in the morning, the plaintiff having gone to work at eight o’clock. The foreman testified that it was his duty to inspect; that he knew that these bolts were liable to loosen, and that it was his duty to tighten them, and that he had tightened them on many occasions. He testified generally that he had inspected the machinery that morning, but he did not testify that he inspected these particular bolts on this particular wheel. It is conceded that inspection was easy, and the looseness of these bolts and nuts could have been readily discovered by proper inspection; they were in plain sight if the inspector got close enough to the wheel. I- think that as the foreman, who said that he properly inspected, was the employee of the. defendant, and that if negligence there was, it was his, it was for the jury to say whether he had performed his duty, and that as the accident occurred so shortly after the machinery started up, this, coupled with the condition of the wheel when examined after the accident, presented a question of fact, which the jury alone could determine, as to whether, under all the circumstances, there had been a proper or negligent inspection.

Upon a dismissal at the close of the plaintiffs ease, the evidence must be viewed in the light most favorable to the plaintiff, and as we think a question of fact was presented, the dismissal was error, the order appealed from should be reversed and a new trial granted,, with costs to the appellant to abide the event. '

Patterson, P, J., Ingraham, Laughlin and Scott, JJ., concurred.

Determination reversed, new trial ordered, costs to appellant to abide event.  