
    Theodore Koslovki, Respondent, v. International Heater Company, Appellant.
    
      Negligence—a servant who employs another to assist him is chargeable with the tatters knowledge of defects in an apparatus by which the former is injured.
    
    In an action to recover damages for personal injuries, it appeared that the defendant had in its foundry an appliance known as a tumbler, which consisted of a large iron barrel in which castings were placed and cleaned by revolving the tumbler; that the head at either end of the tumbler was made with a flange, to which iron staves were bolted, and that, in order to permit the castings to be put in or taken out of the tumbler, it was necessary to unbolt ■ several of these staves.
    It further appeared that the plaintiff had made an arrangement with the defendant, by the terms of which he was to operate the tumbler, receiving therefor three and one-half cents per hundred weight of castings cleaned, and the defendant was to keep the tumbler in good order; that the plaintiff hired two men to assist him, paying them himself; that one of such men, whose name was Felix, had the principal and immediate charge of the work and. looked after the removing and replacing of the staves and-adjusting the bolts, the plaintiff assisting him-when necessary; that on one occasion, while the plaintiff was assisting Felix to take off some of the staves, one of such staves became loosened .and fell upon his foot.
    There -was evidence that the stave fell because the thread of the bolt which . fastened the stave at one end had become worn, thus allowing the nut to slip off, and that the defective bolt had been furnished by the defendant in violation of its agreement to" keep the machine in repair.
    " Held, that a judgment entered upon a verdict in favor of the plaintiff' should be reversed-; -.
    
      That, upon the evidence, the plaintiff could not be charged with personal knowledge of the defective condition of the bolt, but that his employee, Felix, was chargeable with such knowledge and that, as he was the plaintiff's agent in the management of the tumbler, his knowledge was imputable to the plaintiff.
    Appeal by the defendant, the International Heater Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 17tli day of December, 1901, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 11th day of November, 1901, denying the defendant’s, motion for a new trial made upon the minutes.
    
      P. G. J. I)e Angelis, for the appellant.
    
      Josiah Perry, for the respondent.
   Hisoock, J.

This action was brought to recover damages claimed to have resulted from the negligence of the defendant in furnishing for the use of plaintiff a machine with a defective bolt, which permitted a heavy piece of the machine to drop upon his foot.

Accepting the theory adopted by the jury, that the accident did happen in the manner and from the cause claimed, we still think that plaintiff is to be so charged with having had knowledge through his agent of the defect complained of and with having assumed the risks incidental thereto that he cannot recover, and that the judgment and order appealed from should, therefore, be reversed.

The accident happened October 30, 1899. The defendant was engaged in the manufacture of furnaces, and in the course thereof it became necessary to have parts which came from the foundry cleansed of the sand which adhered thereto. This was accomplished by putting several hundred pounds of moldings at a time into what was known as a tumbler,” where they were revolved for a considerable length of time,, with the result of having the sand worn off. It was in connection with one of these tumblers that the accident happened. The particular one involved was about' six feet long with a diameter of about equal length. It was made of iron in the general shape of a large barrel. The head at either end was made with a flange to which iron staves, corresponding to those of an ordi- • nary barrel, were bolted. Several of these staves would be unbolted from, the flange at each end arid taken off to permit the moldings to be put ih and taken out of the tumbler at the commencement and the end respectively of the cleansing process. The tumbler. was revolved by means of appliances attached to it and connected with.the power. .

Plaintiff at and for some time prior to the date of the accident had an arrangement with defendant for cleaning these moldings by the. process in question. By the terms of it he was to receive three and one-half cents per hundred weight for doing the work and, as claimed by him, the defendant was to furnish and keep in order the machine. Having made this arrangement, he hired two men to help him. They were his employees and paid by him and not at all by the defendant. According to plaintiff’s evidence which, in view of the findings of the jury we must assume to have been true, one of. these men-named Felix had the principal and immediate charge of the work. He looked after' taking off and putting on the staves when the moldings were put in or taken out, plaintiff assisting him when necessary. Upon the occasion in question, while plaintiff was helping Felix take off some of the staves preparatory to taking some moldings out, one of the former became loosened and fell upon ■ his foot causing the accident in question. His witnesses gave evidence which permitted a jury to find that this falling of the Stave was due to the fact that the thread had become worn from the bolt which fastened it at one end, thus allowing the nut to slip off and the stave to become loose and fall upon the foot; There was a sharp dispute whether the accident did happen this way.

Plaintiff claims that this defective bolt was furnished by defendant in violation of its agreement to keep the machine in repair. Upon this point again there was a sharp dispute amongst the witnesses. It was claimed upon the part of the defendant that there were new bolts in ■ the shop where Felix, who had charge of the machine, could obtain them. The latter and some other witnesses,, upon the other hand, insisted that the defendant objected to the use-of too many new bolts, and that- he was ■ compelled when, a bolt, became worn to select'from others which had been used one which. iyas simply less worn to fill the place.; that he was accustomed at: various times to make old bolts fit for use by turning a new thread upon them.

There was sufficient evidence to sustain the findings involved in the verdict of the jury that the defendant made the agreement ‘ claimed and failed to keep it, and we pass to the consideration of the contributory negligence or assumption of risks to be imputed to plaintiff.

It will be noted that the arrangement between defendant and plaintiff was somewhat different from the ordinary relation established between employer and employee. The plaintiff was to some extent an independent contractor. He relies almost entirely upon the specific agreemént by defendant to look after the machine, as a basis of his claim of negligence. The specific agreement is placed in the stead of the ordinary liability, from master to employee to furnish suitable machinery.

The query might arise, whether defendant’s alleged agreement would carry with the failure to observe it a liability for personal injuries. It might be urged that the agreement to provide machinery simply had reference to enabling plaintiff to perform his work, and that the only liability for a failure to comply would be liability for damages in his undertaking. This question, however, has not been presented and we need not consider it. The case was tried' below- and lias been presented to our attention simply and solely as an ordinary one of negligence in which the questions have been tried whether the defendant was guilty of negligence and whether plaintiff was free from contributory negligence. The failure of the defendant to furnish a proper machine as found by the j ury has been treated as ordinary negligence, and we shall consider plaintiff’s situation upon the theory already adopted in the action.

It was in effect held and charged by the learned trial justice that if the plaintiff knew or ought to have known of the defective bolt and appreciated or ought to have appreciated the results liable to flow therefrom, lie could not recover. He held, however, that upon all of the evidence this was a question of fact for the jury. We think that so far as plaintiff’s personal knowledge was concerned this disposition was correct. There was testimony showing that plaintiff was accustomed to help his man Felix bolt the staves to the flanges and that he was more or less around the tumbler. He denied absolately and unqualifiedly, the possession of any knowledge which would tell him that the bolt in question was defective. While there may be apparent improbabilities in his version we feel unwilling to hold that he is to be charged as matter of law with personal knowledge of the conditions which are said to have existed. His position in the case, however, is not in our judgment to be measured simply by his personal knowledge and observation. Having made with the defendant a contract which involved its supplying and keeping in order the machine, he operated the same through a man who was eoiicededly his employee. . He dealt with the defendant in its operation and repair through such employee. As claimed by him, instead of putting on and taking off the staves himself, he largely did. it through this agent. He decided through this man whether the bolts' supplied by defendant were sufficient and should be used or not. In our opinion he is to be charged with the knowledge and conduct of his employee through whom he thus acted.

Perhaps the force of this conclusion may be made, more apparent by assuming to have existed in the machine a much more aggravated and serious defect than is claimed. The principle will be the same, but the illustration may be useful. Let us suppose that upon the occasion in question one end of a stave had become so loosened as to make it perfectly manifest that it would in the operation of the machine fly off and injure any person working there-. If, under such. circumstances, plaintiff’s man in charge had accepted the machine from the defendant and put it in operation calling plaintiff to assist him and either had been injured, we think it will almost be conceded that, a recovery could not have" been had.

It is not an unfamiliar rule that principals are to be charged with the knowledge and responsibilities acquired and incurred. by their agents while acting in the course of their employment. We do not regard it as a departure from well-settled general principles to hold that a principal who is engaged in managing a piece of machinery through an agent and employee shall be charged with thé knowledge and observation of his employee and be bound by the latter’s assumption of any risks incidental to the use of the appliance..

. Upon the .other.hand,- it may be regarded as quite well settled that the contributory negligence of an agent will bar a recovery by .his principal for the negligence of a third party. (Dyer v. Erie Ry. Co., 71 N. Y. 228; Lewis v. L. I. R. R. Co., 162 id. 52, 66; Delaney v. Yonkers R. R. Co., 13 App. Div. 114; Wooster v. Broadway & Seventh Ave. R. R. Co., 72 Hun, 197.)

■ These views bring us to the consideration of the question whether plaintiff’s employee Felix is, as matter of law, to be charged with knowledge of the condition of the bolts and with appreciation of the results which would probably follow the wearing out of the thread. We do not find much difficulty in answering this in the affirmative.

For months Felix had been at work around the tumbler. Plaintiff, by his evidence, has emphasized the theory that he had charge of putting on and taking off the' staves and adjusting the bolts. This operation had been repeated by him two or more times each day for months. According to defendant’s theory, he had had opportunity to replace bolts which became worn with new ones which were kept on hand. According to plaintiff’s theory, he had been accustomed to replace worn-out bolts with others less worn, and frequently had been compelled to turn new threads upon bolts. He had complained to the defendant’s employees about the lack of proper and sufficient bolts. His work in adjusting the same compelled him to observe their condition; We think that, under such circumstances, it is not at all a strained conclusion that he knew more about the condition of the bolts than anybody else, including the defendant’s employees. Knowing the condition and observing, if it existed, that the thread had been worn off from a bolt, it required no very expert knowledge to foresee that 4,000 or 5,000 pounds of iron being revolved in the tumbler was liable to force off the nut and cause a stave weighing between 100 and 200 pounds to drop off.- This involved a very simple process of reasoning, which was well within the mental capacity and experience of the man.

We think, therefore, that it must be imputed to plaintiff that through his agent he knew of the condition of the bolt complained of and ought to have foreseen the probability of the accident which it is said happened.

Under the circumstances in this case, we do not think that there was anything in the alleged conversations of Felix with the defendant’s employees about supplying more and newer bolts which relieves plaintiff from the assumption of the risks incident to the. use of the defective ones.

The judgment and order appealed from should be reversed and a new trial granted, with- costs to appellant to abide event, upon,questions of law only, the facts having been examined and no error found therein,

Adams, P. J., McLennan, Spring and Williams, jj., Concurred.

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.  