
    Lorenzo Fasani, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Fourth Department,
    November, 1905.
    Negligence — injury to workman by flying splinter while cutting steel, rail—when master not liable therefor; '
    The plaintiff, an employee of the defendant,, was injured by a flying splinter of steel while holding the end of a rail which -was being cut with a chisel-and hammer. It was shown that this was considered to be the best method of cutting and was in general use.
    
      Held, that the accident could not have been reasonably apprehended by the defendant and that ajudgment -for the plaintiff should be reversed.
    Appeal by the defendant, The New York Central and Hudson Biver Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of tlie clerk of the county of Oneida on the 25th day of March, T905, upon the verdict'
    
      
      Charles T. Titus, for the appellant.
    
      D. F. Searle, for the respondent.
   Spring, J.:

In October, 1902, the plaintiff was one of a gang of section men employed by the defendant. The men were engaged in cutting^' a steel rail. The method adopted was for one of the men to hold the sharp edge of a cold chisel against the rail while another struck the head with a heavy hammer and as the work progressed the rail was turned over so that the cut continued entirely around the rail. When the work was completed the rail would be lifted up and dropped to the ground, whereupon it would break at the cut by its own weight. The foreman was holding the cold chisel at the time of the accident, and the plaintiff was several feet away steadying the rail when a sliver of steel flew off the head of the hammer or chisel or from the rail and hit the plaintiff in the eye resulting in its loss.

The method adopted had long been in general use upon railroads and was deemed the most effective way to cut the rail. There is no proof that any accident had ever occurred before by the flying off of slivers frotn the implements used in carrying on the work. The head of the chisel would sometimes become battered and its edges frayed and one witness testified that he had known of pieces of steel being thrown several feet, but nothing more than this.

In view of the extensive use of this means of cutting the rails on many lines' of -railroad apparently without the infliction of injury by flying pieces of steel, we think it was not such an accident as might have been reasonably apprehended by the defendant. If an accident occurs to an employee from the ordinary use of a simple instrument or contrivance and one which the master even by the exercise of reasonable caution could not have anticipated, he is not liable for the injuries' sustained. We think the accident falls within this category.

The judgment should be reversed and a new trial granted on questions of lav? only, the facts having been-examined and no error found therein.

All concurred, except Williams and Hiscock, JJ., who dissented.

■Judgment and order reversed, and new trial Ordered, with costs to the appellant to abide event, upon questions of law only,, the facts having been examined and no error found therein. .  