
    Bernhard Welle, Appellant, v. The Celluloid Company, Respondent.
    
      Injury from the slipping of a hooh in a lug on the side of a pot — in, the absence of proof of the cause thereof '. the complaint should be dismissed.
    
    In an action to recover damages for personal injuries sustained by an employee of the defendant, while engaged in dumping acid from a pot, it appeared that the pot had been raised several feet by means of chains having a hook at each end placed in a lug upon either side of the pot; that as the plaintiff placed his hand upon the pot to swing it around, one of the hooks slipped and the pot dumped over, scalding him.
    It further appeared that about a week before the accident, during the plaintiff’s absence, a hook had slipped while a pot was being lifted, but there was no evidence that this fact bad been called to the defendant’s attention. There was no evidence showing what caused the hook to slip on either occasion, hut an expert testified that if the hook, after being placed in position, fell back, because of the slackness of the chain, so that it caught, not at the bottom of the hook, but some distance up toward the point, it was possible for it to slip, in consequence of its shape and character, without the equilibrium of the pot being disturbed. It did not appear, however, that this had actually happened, or that the hook was properly placed in the lug before the pot was' raised.
    
      Held, that the complaint was properly dismissed.
    Dumsey, J., dissented.
    Appeal by the plaintiff, Bernhard Welle, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 2d day of December, 1899, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury, and also from an order entered in said clerk’s office on the 28tli day of November, 1899, denying the plaintiff’s motion for anew trial made upon the minutes.
    
      
      Stephen C. Baldwin, for the appellant.
    
      Joseph Larocque, Jr., for the respondent.
   INGRAHAM, J. :

The plaintiff had been in the employ of the defendant for several years, working in what was called the acid room, and the work at which he was engaged required him to dump the contents of certain pots containing acid into what was called a whizzer. .

These pots were placed upon a turntable which was below the whizzer so that the pots had to be lifted before they could be damped. The plaintiff had been away from the factory in consequence of sickness and returned the week of the accident. When he returned he noticed that the hooks used to attach these pots to the chain with which they were raised were smaller than those that had been in use before he left. Two men seem to have been engaged at this work, each man putting a hook into a lug upon one side of a pot. The pot was then raised by a windlass about three feet above the turntable upon which it had rested. After lifting the pot the plaintiff was required to affix a chain to the back of the pot so as to dump it. The plaintiff and his associate having lifted this pot by means of the windlass, the plaintiff went around to affix this chain to the back of the pot. He placed his hand upon the ¡Dot to swing it around and as he did so the pot dumped over and he was badly scalded. The hook that slipped or gave away was the hook that had been placed in position by the plaintiff’s fellow-workman. There was evidence that about a week before this accident, during the plaintiff’s absence, a hook had slipped while a pot was being lifted, but there is no evidence that this fact had been called to the attention of the defendant, or any of its officers. Hor is there any evidence as to what caused the hook to slip on either occasion. When at the time of this accident the hook slipped the whole weight of the pot rested upon the two hooks affixed to the sides, of the pot, as the pot had been lifted from the turntable upon which it had rested. It also appeared that on this occasion after the plaintiff and his associate had placed the hooks in the side lugs, the pot, which weighed from 900 to 1,200 pounds, “ lifted all right; it lifted straight up.” The lugs iipon the side of the pot were examined after the accident and found to be more oi- less worn; but there was no evidence 'that this wearing of the lugs had anything to do with the accident. A witness called for the plaintiff was asked a hypothetical question which assumed certain facts that had been sworn to on behalf of the plaintiff, and .the witness was then asked: “ Are you. able to state with reasonable certainty what would occasion the fall of that pot ? ” The answer was : “ The hook was too short and the hook had an open mouth.” In explaining his answer the witness stated that the-natural axis of the hook, that had been produced as the one in use at the time, hanging free in the chain was perpendicular. “ How, when .this hook is placed in the lug through a hole, this hook catching on that lug, the axis becomes a forced axis; ” that it seats nearer the top than it does the base of the hook; that it is .impossible with a hook of that character to have a vertical axis; that if a longer hook had been used there would have been no opportunity for the lug to catch on the point of the hook; that if the hook had not been properly inserted in the lug — had 'been inserted so that the point of the hook rested on the side of the opening of the lug — the pot would have fallen, either in hoisting or upon the application of a very little force; that if the hooks had been originally placed in a proper condition, clear down to the bottom where they rested, on. the lugs, it could not have fallen, but if, after placing the lugs, it had then dropped back, it would then remain at the place where it caught on the side, making a new axis; that it was impossible if the hook was in a proper position in the lug for the pot to overturn so long as it remained “ in equilibrium.” Upon this evidence the court' dismissed the complaint.

I cannot see that there is evidence as to what caused this hook to slip. If the hook had not been properly placed in the lug so that it had caught upon the point of the hook instead of the bottom, the action, of the plaintiff in turning the pot may have caused the point of the hook to slip, but I cannot see how, if the hook had been properly placed in the lug, so that the weight had come upon the bottom of the hook, the mere touching of the. pot could have caused the hook to slip and the pot to fall. But for the expert testimony to which attention has been called, there was no evidence to justify a finding that this accident happened because of any defect in the machinery or appliances for which the master was responsible. We have the testimony of the expert, that if after the hook had been placed in position it had fallen back so that it caught, not at the bottom of the hook, but some distance up towards the point, it was possible for the hook to slip, in consequence of its shape and character, without the equilibrium of the pot being interfered with ; and it is upon this latter answer, if at all, that there can bean inference that a defect in the hook could have caused the accident, but there is no evidence that the accident happened because of this possibility testified to by the expert. Nor does the slipping of the hook which happened on the former occasion, about which testimony was given, tend at all to explain why this hook slipped under the conditions existing at the time of this accident, for that hook slipyied when the pot was being lifted, thus presenting an entirely different condition from that which existed at the time of this accident, when the hook slipped after the pot was lifte'd and its whole weight of about 1,000 pounds was resting upon the hooks. We have thus a case presented with no evidence to show what caused the accident, except the testimony of an expert as to what, in his opinion, might have happened, but who had never seen the. machinery, had no knowledge of its condition, and could only testify in answer to a hypothetical question. Would such an opinion justify a finding that this .accident was caused, by an improper appliance furnished by the master for the use of his servant? I cannot think that it would. It is perfectly apparent, and is admitted by the expert witness called by the plaintiff, that if the hook had been placed in the lug so that the point of the hook caught upon the lug, the accident would have happened just as it did ; and for such an accident it is clear that the defendant would not have been liable. The only effect of this expert testimony was that in the opinion of the witness it was possible that it happened in some other w7ay, although, so far as I can understand his answers, the other way was that after the hook had been placed in position in the lug, in consequence of the slackness of the chain, it might have fallen back so that the bearing point'of the hook would have been towards its point rather than at the bottom. In either case the accident would have resulted from the fact that the bearing point on the hook was towards the point rather than at the bottom; in one case, because the hook had not been properly placed in the lug; and, in the other, because the hook, while properly placed, had fallen back, and, from the shape of the hook, when the strain came the bearing point would have been at some other place than at the bottom of the hook which would have been safe; but this is all the merest conjecture. There is no evidence to show that the hook was properly placed in the lug before the pot was raised; nothing to show that the accident did not happen because of some negligent or improper attachment of the hook to the pot. An accident happened which is explainable upon the assumption that the hook was improperly placed in the lug; no-evidence that it was properly placed there, and evidence of an expert that if it had been properly placed there it might have fallen because of the shape of the hook: I do not think that from such evidence a finding of the jury that this accident was occasioned because of the shape of the hook would have been sustained by. the evidence.

I think, therefore, that the judgment should be affirmed, with costs.

Patterson and McLaughlin, JJ., concurred; Rumsey, J.? dissented.

Judgment affirmed, with costs.  