
    Mary Davies, Adm’rx, Resp’t, v. The Pelham Hod Elevating Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 20, 1892.)
    
    Negligence—Unsafe apparatus—Change at request of injured party.
    Defendant contracted to furnish to the employer of plaintiff’s intestate a derrick with proper appurtenances for hoisting granite, and furnished one with a steel wire cable. After a time the intestate, who had full charge of the work and represented his employer, found fault with the cable and asked to have it changed for a manilla rope, and defendant furnished a new rope larger than intestate asked for. Thereafter the rope broke and intestate was injured so that he died. Held, that there was a substitution of intestate’s judgment for that of defendant in respect to the kind of rope to be used, which was a complete answer to a charge of negligence against defendant for having furnished such rope.
    . Appeal from j udgment entered on verdict in favor of plaintiff, and from order denying motion for new trial.
    
      George S. Coleman, for app’lt; William H. Arnoux, for resp’t.
   O’Brien, J.

This action was brought to recover sum of $5,000 for the loss of the life of plaintiff’s intestate, which was alleged to have been due to the negligence of the defendant in fulfilling its contract with one Hopper & Co., and in furnishing an insufficient derrick and appurtenances. Defendant’s contract was to furnish a derrick, with ropes, blocks, engine and engineer to operate it, on the premises on the northeast corner of Fifty-ninth street and Fifth avenue, to’ be used in hoisting and placing in position blocks of granite that were to be used as foundation stones and piers of the hotel now known as the Astor Hotel. Some question upon the pleadings is presented as to whether or not the defendant knew the purposes for which the derrick was to be used, but we think that the construction given by the learned trial judge to the pleadings was correct.

The evidence shows that the contract was made with reference to a derrick that Mr. Hopper had previously seen in operation upon a building directly opposite to the one in question. This same derrick? rigged with a steel wire cable, was delivered and thereafter safely operated for some weeks. About three weeks before the accident the plaintiff’s intestate took charge of the work" .and control of the derrick as Mr. Hopper’s representative. He .found fault with the cable wire rope and desired to have it ■changed for manilla rope. Mr. Hopper authorized him to make any changes he might deem proper, ás hé'was in entire control of the derrick. At the request of the intestate, the change was made in his presence and with his assistance, défendant furnishing a new manilla rope four and one-quarter inches in circumference, and being one-quarter inch larger than, according to the testimony of one of the witnesses, was asked for by Davies. On or about the 10th of June, 1891, the derrick had lifted a granite block, weighing five and a half tons, on one of the piers; it had a mate stone. It was found not to have a level bed. Davies gave orders io raise it off its bed. It was raised two or three inches, when-the manilla rope (the topping lift) broke, precipitated the granite block ancl the boom, which the rope held in position, to the ground. The boom, in its descent, struck plaintiff’s intestate on his’ head, causing injuries from which he soon after died. Evidence was offered by plaintiff tending to show that the rope was unfit; of insufficient strength.to lift these massive pier stones. On the other hand, some of plaintiff’s witnesses and others produced by defendant testified that this rope was used in raising large stones for about two weeks; fifty-five stones were raised and set in place with it; about a dozen of these were as large as the stone in raising which tne rope broke, and one was much larger.

Were there no other question in the case but that presented by the conflicting evidence as to the sufficiency of the rope, the jury having found in favor of the plaintiff, the verdict could not be disturbed. The appellant insists that the complaint should have been dismissed, as it alleged no cause of action against defendant in favor of the plaintiff, the charge being negligence in fulfilling a contract with Hopper & Co., by reason of which alleged negligence plaintiff’s intestate was injured and subsequently died. It is contended that, because there was no privity of contract, or privity of any kind between plaintiff’s intestate and the defendant, no recovery ■Could be had. In support of this view we are referred to the case of Burke v. De Castro, etc., Sugar Refining Co., 11 Hun, 354, where it was held that the plaintiff could not maintain an action against the defendant based upon the negligence of the defendant in furnishing an unsafe apparatus for hoisting sugar which the defendant, under a contract, had -allowed the plaintiff’s employer to use, and had hired to him for the purpose of unloading a cargo of sugar from a vessel.

We think, however, that the case of Devlin v. Smith, 89 N. Y., 477, extending the principle of the case of Thomas v. Winchester, 6 N. Y., 397, must be regarded as having overruled the case of Burke v. De Castro, etc., Sugar Refining Co. In this latter case, Devlin v. Smith, it was said, in speaking of the liability of one who undertook to build a scaffold ninety feet high, for the purpose of enabling the workmen of one Smith to stand upon it and paint the interior of the dome of a court house, that the builder of the scaffold was liable for any neglect or negligence in its construction which would cause it to give way and réáult in injury to an employee or servant of Smith’s. As was said in that case, commenting upon Coughtry v. The Globe Woolen Co., 56 N. Y., 124: “ The deceased was not a party to that contract, and the same argument was made as is urged here on the part - of the defendant, that the latter owed no duty to the deceased. But this court held that, in view of the facts that the scaffold was upwards of fifty feet from the ground, and unless properly constructed was a most dangerous trap, imperiling the life of any person who might go upon it, and that it was erected for the very purpose of accommodating the workmen, of whom the person killed was one, there was a duty towards them resting upon the defendant, independent of the contract under which the structure was built, to use proper diligence in its construction.” In view of the uses to which admittedly the defendant knew the derrick was to be put, we think that the case of. Devlin v. Smith is controlling!

Assuming, therefore, that proof of knowledge by defendant .pf the uses to which the derrick and ropes connected therewith were-to be put, coupled with the fact that they were insufficient and improper, thus making them eminently dangerous to life, was-sufficient, within the principle of the case cited, to render the defendant responsible for injury to plaintiff’s intestate, in the absence of any privity between them, there still remains in the case another feature which we think fatal to plaintiff’s recovery.. The defgndant’s contract was to furnish a particular derrick, properly rigged. In'fulfilment of this obligation the very derrick contracted for was erected, supplied with a steel wire rope, which, as shown by the evidence, answered all-purposes until, at the request of plaintiff’s intestate, it was discarded, and the manillarope substituted. Whether the wire rope had a Haw in it or not, as testified to by one of the witnesses, there is yo proof to negative the view that a perfect, wire rope would have answered the purposes and uses to which the derrick was to be. put. It was proved that the deceased had control of the derrick, and authority to change and to select or reject any or all ropes. The kind of ropes he used was entirely under his control. Had he placed the obligation upon the defendant of selecting a rope suitable for the purpose, a failure to discharge this obligation might have rendered the defendant liable. But where, as in this case, .the plaintiff’s intestate insisted upon a change from the steel wire to the manilla rope, and when the rope, as furnished by the defendant, in all respects, was such as ordered, and was one-quarter inch larger than the intestate - thought sufficient, it is difficult to understand in what respect defendant was negligent" after supplying to plaintiff’s intestate the very kind of' rope'that he ordered. While, therefore, the defendant’s original contract may have been to furnish a rope sufficient todo the work required,- this obligation was discharged by supplying the steel wire cable with which the derrick was operated for several weeks and up to the time that, by reason of some flaw he .discovered therein, or acting upon his own judgment as to the best kind of rope to be used, the plaintiff’s intestate directed the steel wire-cable to be removed and a manilla rope substituted. It thus appears that, in accordance with-the requirements of plaintiff’s intestate, to whom authority was given, and who had a right to change the rope, the defendant, in compliance with the request and order so given, delivered the manilla rope, which the evidence in the case was directed to show was insufficient for the uses to which, on that particular building, the derrick was to be put.

We are of the opinion that the substitution by plaintiff’s intestate of his own judgment for that of the defendant, in respect to the kind of rope that should be used, is a complete answer to the claim made of negligence as against defendant in having supplied him with the very thing that he ordered, and from the use of which his injuries were received.

' ' No motion was made to dismiss the complaint upon this ground, but in various forms it was presented to the court in the shape of requests to charge the jury, which were refused by the learned trial judge, and an exception to such refusal taken. We are of opinion that had a motion been made to dismiss the complaint at the dose of the evidence, it should have been granted; and that the error in the refusal to charge propositions of law to which the defendant was entitled was such error as to require a reversal of the judgment and a new trial, with costs to appellant to abide the ■event.

" Patterson, J., concurs; Van Brunt, P. J., concurs in result.  