
    Timothy O'Connor Respondent, v. The Pennsylvania Railroad Company, Appellant.
    
      Negligence — longshoreman injured while wheeling a truelc down q defective gang plank —proof that another perfect gang plank was there ready for me.
    
    Where, in an action brought hy a longshoreman against his employer to recover for injuries sustained while wheeling a truck down a gang plank in consequence of catching his foot in a part of'the iron apron witli which the plank was sheathed and which had been loosened by wear, the defendant interposes an answer alleging that the plantifE’s injuries were sustained through his own negligence or that of his fellow-servants, it is error for the court to refuse to permit the defendant to show that it kept upon its pier another perfect gang plank for use in case of need.
    Appeal by the defendant, The Pennsylvania Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of April, 1899, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 20th day of April, 1899, denying the defendant’s motion for a new trial made upon the minutes..
    
      Henry Galbraith Ward, for the appellant.
    
      Michael J. Horan, for the respondent.
   Patterson, J.:

The plaintiff, a longshoreman, was employed by the defendant as a freight handler, and on the afternoon of the 13th of March, 1896, he was directed to move merchandise from a dock at pier 27, North river, in the city of New York, to a boat of the defendant, then moored at such. dock. Extending from the dock to the boat was a skid or gang plank about fifteen feet long. It is described as looking like a bridge, with sides to it and a flapping piece at each end. "When in use, one end of the skid would rest upon the dock and the other upon the boat. On the afternoon of the day above mentioned, the plaintiff was injured by falling on this .skid or gang plank. When he fell he was moving from the dock to the boat, down the skid or gang plank, a case of merchandise weighing about 850 pounds. The case was upon a wheel truck which the plaintiff was drawing. lie claims that while he was coming down this skid " or gang plank his foot was caught in a piece of tin or iron which was raised up at the end of the skid resting upon the boat, and that he was thrown down, and sustained injuries which subsequently necessitated the amputation of one of his fingers. The piece of metal is commonly called an apron, and it is described as sheathing or sheeting to prevent the skid from wearing down. The plaintiff sued to recover damages' for the injuries thus claimed to have been sustained, and in his complaint alleged that the gang plank or skid was not a good, safe and secure apjiaratus and appliance, and that the defendant' violated its duty to him in furnishing an unsafe and defective and insecure gang plank, and that from the want of due care and attention of the defendant to its duty in that behalf, and through the insecurity and unsafe and defective condition of the gang plank, the plaintiff was injured. The defendant admittéd the employment of the plaintiff, and that he was injured, and also that it was its duty to use ordinary and reasonable care to provide good and safe apparatus and appliance for the plaintiff to use in connection with his work; but it denied that it carelessly, negligently of unskillfully provided or used an unsafe or defective or insecure gang plank, and denied that the plaintiff was injured through the ■gang plank being unsafe, defective or insecure, and it averred that whatever injury happened to the plaintiff was due to his own negligence or that of his fellow-servants. The plaintiff had a verdiet, from the judgment entered upon which and from an order denying a motion for a new trial this appeal is taken.

On-the trial the principal dispute related to the condition of the skid and its being a fit and safe appliance. The defendant’s contention is, that the skid was in daily use and that any defect which existed in it at the time of the accident to the plaintiff was only the result of its use on /the day on which the accident occurred ; and it is argued that there is no violation of an employer’s duty to keep a machine or appliance in order where a defect is one arising from the daily use of such appliance and where the defect may be readily remedied by workmen, and proper and suitable materials are supplied by the master, such defects not being of a permanent character and requiring the help of skilled mechanics. (Cregan v. Marston, 126 N. Y. 572.) All that is claimed here as to the defective condition of the skid is that the sheathing became worn so that the rivets no longer held, and the metal curled or turned up so as to. make a slight projection of an inch or an inch and a half. That could have been remedied immediately by hammering the sheathing down and inserting a few nails or rivets.

The whole effect of the evidence is to show that by daily use both the wood and_ the metal would be liable to be worn down. The plaintiff contends, however, that it cannot be assumed that the defective condition of this skid was produced while it was being used on the day of the accident, because the witness Keating testified that he had seen it in the same condition several days before, and from that testimony the deduction is made that, from the lapse of time during which this defect existed, notice of .its condition was imputable to the defendant. The testimony of Keating is somewhat vague and unsatisfactory as to what the condition of the skid was several days before the accident; but the defect was evidently a very slight and inconsiderable one. That is apparent from the fact that Keating did not consider it of sufficient consequence to report it when as he testifies he observed it before the accident. The plank was inspected every day by a carpenter named Moore, whose business it was to make daily inspection and to repair anything out of order. He testified that continual traffic wears the rivets down and the metal may become separated, and when that is ascertained the rivets are replaced. The neglect to make the very slight repairs required to this skid was that of the plaintiff’s fellow-servants ; but assuming that there was enough in the evidence on this question of notice to take the case to the jury, there was error committed in the rejection of evidence which calls for a reversal of the judgment.

It is set up in the answer as a sixth and separate defense, that whatever injury happened to the plaintiff was due to his own negligence or that of his fellow-servants. The defendant attempted to prove this defense, as it related to the negligence of the plaintiff’s fellow-servants. If the defect in the skid existed before the day on which the accident occurred, it was plainly observable, for Keating, one of the plaintiff’s fellow-servants, had seen it and failed to report it. If the defect existed, it was at the utmost the duty of the employer either to have it remedied or to provide another apparatus which was in good condition. The defendant offered to prove that the company kept an extra bridge there on the pier to be used in case it was needed. Evidence to prove that fact was objected to and excluded. That was a fatal error. Taking the extreme view that the defendant was otherwise liable for injuries attributable to this slightly imperfect condition of the skid, it was entitled to show that it had made ample and adequate provision for the substitution of a perfect bridge in place of one that became out of repair. It certainly was not the duty of a master to put it in place from the dock to the boat. That was the business and duty of its employees, who were to use the appliance or apparatus the company furnished them to work with. This plaintiff was not a new hand just employed. He had been working on this dock and with skids in taking freight from the dock to boats for some five months, and the defendant should have been allowed to prove those facts which would establish that the neglect of the plaintiff’s fellow-servants was the cause of his injury.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.

Van Brunt, P. J"., Barrett, O’Brien and McLaughlin, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  