
    Fred H. Dittman, Appellant, v. Edison Electric Illuminating Company, Respondent.
    Second Department,
    April 24, 1908.
    Master and servant—negligence—injury by belt — duty of inspection — sufficiency of complaint — res ipsa loquitur.
    The duty devolving upon a master to maintain proper belts in his factory involves proper inspection, and he is liable for the negligence of a servant who has been selected to inspect the belts every morning, and who alonéis permitted to make repairs. Under such circumstances, the inspection is not a detail of the work which devolves on the servants using the belts.
    Where a piece of belting was in some manner torn or thrown off, striking a servant in the eye, an averment in an action to recover therefor that the “belt broke and a piece thereof flew off and struck plaintiff in the right eye ’’
    ■ describes the accident with sufficient accuracy.
    The riile res ipsa loquitur does not apply to an accident simply because it is unusual and unexplained, but where the unusual nature of an accident is suggestive of some defect it may be considered in connection with other evidence.
    Evidence examined, and held, that inferences were permissible that the accident resulted from a defective condition of the belt, which should have been discovered on inspection, and that it was error to dismiss the complaint on the ground that the cause of the accident was unexplained.
    Appeal by the plaintiff, Fred H. Dittman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 8th day of October, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.
    
      
      William G. Cooke [Howard O. Wood with him on the brief], for the appellant.
    
      H. Snowden Marshall [Frederick E. Fishel with him on the brief], for the respondent.
   Miller, J.:

The plaintiff was employed by the defendant to oil and clean machinery. A piece of belt near which he was working was in some manner torn or thrown off, striking him in the right eye, destroying its sight. On a former appeal a judgment for the plaintiff was reversed for an error in the admission of testimony. (8Y App. Div. 68.) On the trial now being reviewed the court directed a verdict for the defendant on the ground that the accident did not occur as alleged, and that the cause of the accident was unexplained. The averment of the complaint was “ That on the day aforesaid said belt broke and a piece thereof flew off and struck plaintiff in the right eye.” We think the occurrence was described with sufficient accuracy, but the other point presents greater difficulty.

The belt was thirty-eight feet long. It passed on an angle of about forty-five degrees from the pulley attached to the dynamo through holes cut in the floor to the shafting below. In passing through the floor there was a clearance of a half inch between the belt and the beam under which it ran ; the belt was twelve inches wide, the pulley connected with the shafting was fourteen inches wide, and a half inch from it was an iron girder. The belt was a double belt, composed of pieces cemented together and shaved down at the joints or laps so as to be of uniform thickness. The piece torn off was twenty inches long, four to six inches wide at one end and tapered to a point. It was torn from one of the laps of the outside ply, the wide end being the end .of the lap. The edges of the joints are liable to wrinkle up, and that tendency is greater if the belt is old or rotten. The plaintiff testified that a short time after the accident he found the belt, which he identified by the missing piece among the discarded belts, and that he cut a piece from it, which was produced on the trial, and which he said looked exactly as it did when he cut it out. Two witnesses called as experts testified that the leather in that piece was rotten; that the life was out of the fiber. They explained that a belt got in that condition from “ neglect, not having been dressed, overheated and overloaded with machinery and age.” The trial was four years after the accident, and the respondent argues that the testimony of the experts is of no probative force, because a neglect of four years was sufficient to account for the condition • of the piece; but I think it is to be gathered from the testimony of said experts that they referred to a neglect to oil and properly care for the belt while in use, and it was for the jury to weigh the testimony'of the plaintiff to the effect that the piece looked exactly as it did when he cut it out. The plaintiff testified that when the accident happened he was cleaning a belt on another machine near by, pursuant to the direction of his foreman, and that he had not cleaned the particular belt in question. The belt was cleaned by holding a piece of waste on top of it. The defendant sought to show by admissions, which were denied by the plaintiff, that the latter was cleaning the belt from which the piece was torn, and allowed some waste to get between the belt and the pulley, thereby deflecting the belt against the iron girder. The belt revolved at the rate of 5,000 feet a minute.

I think that, viewing the evidence in the light most favorable to the plaintiff, inferences are permissible that one of the joints had become loose, that the lap had curled up, as one of the witnesses expressed it, and coming in contact with the beam in the floor was torn off, and that that resulted from a defective condition of the belt, which could and should have been discovered on inspection. The accident was unusual and not likely to occur if the belting and machinery were in proper condition, except upon the intervention of some unusual force. I do not say that the occurrence itself furnishes prima facie evidence of negligence on the part of the master,, because the rule res ipsa loquitur does not apply to an accident simply because it is unusual and unexplained. But the circumstances of the accident are at least suggestive of some defect, and when considered in connection with the other testimony in the case they warrant the inference that the trouble was in the defective condition of the belt. This brings us to the point which was suggested but not decided by the court on the former appeal. The proof is that the defendant employed a servant whose duty it was to inspect the belts every morning, and in case of a defect to repair it. The other workmen had nothing to do with the inspection, oiling or repair of belts. The necessity of constant and careful inspection is obvious. One witness testified that a very careful-inspection was necessary to discover any loosening of the joints.

I think the master owed the duty of inspection, and that he is liable for the negligence of the servant selected to perform, that duty. The duty of furnishing a proper belt in the first instance is undoubted, and a correlative and equal duty was that of maintenance, whicli involved proper inspection. (Franck v. American Tartar Co., 91 App. Div. 571; Koehler v. New York Steam Co., 183 N. Y. 1.) The general rule is settled law, the question is as to the exception, the reason for which is well stated by Finch, J., in Cregan v. Marston (126 N. Y. 568) : “ One of those is that it is not the master’s duty to repair defects arising in the daily use of the appliance, for which proper and suitable materials are supplied, and which may easily be remedied by the workmen, and are not of a permanent character, or requiring the help of skilled mechanics. * * * The eases cited and their doctrine appear to be founded upon what is determined to be the implied contract relation between the master and servant. Their mutual duties grow out of that relation and change and vary as it is changed or varied by the facts which indicate and measure it. Where those facts show that in the understanding of both parties a class of ordinary repairs are to be made by the servants with materials furnished by the master for that express purpose; that they and he regard it as a detail of their own work; that it is something entirely within their capacity and not dependent upon the skill of a special'expert; and that the necessity springs from their daily use of the appliance, occurs at different and unknown periods in their service, and is open to their observation in the absence of the master; the inference is inevitable that the contract relation between the parties makes it a duty of the servants and a detail of their work to correct the defect when it arises with the materials furnished.” I think that the present case falls-within the rule and not the exception. It is true that the defect resulted from daily use, but that is always the case and the very reason for requiring inspection. The defect was not one which ,the servants themselves if careful necessarily discovered in the course of their work and were expected to repair. The necessity for special inspection was recognized by the master, and it selected an inspector who alone was permitted to make repairs. The case is not at all like Cregan v. Marston (supra), in which the rope handled by the workmen was constantly wearing ont and was easily replaced by the men themselves.

I advise that the judgment be reversed.

Woodward, Jerks and Hooker, JJ., concurred.

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