
    James T. Doyle, Plaintiff, v. J. Gilbert White, Defendant.
    (New York Superior Court
    Trial Term,
    November, 1895.)
    Where a master has used reasonable care and prudence in the selection of appliances or materials purchased from the manufacturer or others, he is not liable for defects therein which were not discoverable upon inspection.
    While plaintiff was engaged at work for the defendant in constructing a trolley road, he was thrown from the- top of an iron pole by the jar .caused-by the breaking of an eyebolt which had been placed therein by a fellow-servant. The eyebolt, which had been purchased from the manufacturer, was not deficient in size or material, but was claimed to be dangerous on account of having been improperly welded, which defect was not apparent to ordinary observation. Held, that defendant was not liable for the injury.
    
      Motion by" plaintiff for a new trial on the minutes after dismissal of his complaint by the trial judge: '
    
      Mapes <& Kell/y and JE., T. Taliaferro, for motion.-,
    
      O. 6. Nadal and H. O. Smyth, opposed,
   . McAdam, J.

The action is to recover $50,000 ■ damages for injuries sustained by the plaintiff, a lineman, while in the employ of the defendant, a trolley road - contractor, bn January 10, 1893. ..

It appeals that the plaintiff was working at the ,top . qf an iron pole erected by the defendant in- Berone street, New Orleans. ■ While in that position, at a height of about twenty feet from the sidewalk, an eyebolt, which held a wire, that spanned the street, broke, causing a jarring of the pole which threw the plaintiff to the sidewalk and inflicted the injuries complained of.

It also- appeared that the eyebolt was not manufactured by the defendant, but was purchased, with, others, by him through A. Baldwin & Co. from the New Orleans Agricultural Works, a corporation which .manufactured them; that these concerns were well known and responsible, and the defendant had every-reason ,to believe that the bolts were well made.

No fault" is- attributed to the eyebolts, except that the par-, "tieular one in question was welded, and the break was ascribed to the welding. The plaintiff’s principal witness testified that there was nothing in the eyebolt to indicate that it was weak.

■ The bolt was put in the pole by a felloW-servant of the plaintiff engaged in the same occupation.

At the conclusion of the trial defendant’s counsel moved to dismiss the -complaint oh the ground that • there was no evidence of negligence on the part of the" defendant, and that he was not responsible fqr any neglect of the plaintiff’s, fellow-workman.. The motion was granted. . The plaintiff claims that this was.-error, and moves for a new trial,

Fpon entering the defendant’s employ the plaintiff must be treated as having taken upon himself' all the risks ordinarily attending the business, and among these risks are those incident to the careless or wrongful áets of co-servants. Wood Mast. & Serv. (2d ed.) § 427; Keenan .v. R. R. Co., 145 N. Y. 190. This rule is elementary. In order to hold the defendant the plaintiff was bound to establish that the master omitted some duty owing to him, in consequence of which neglect dr breach, and as-its proximate cause, the plaintiff suffered injury.

The source of the damage was a defective eyebolt, not deficient in size or material, but said to be. dangerous on ■account of its being improperly welded, which defect was not apparent to ordinary observation. The eyebolt was put in the pole by the plaintiff’s- fellow-workman, and if there was any negligent act in putting it in place it was that of the co-servant. A master is not bound to furnish the best-known or conceivable appliances; he is required to furnish such as ■are reasonably safe. Burke v. Witherbee, 98 N. Y. 562; Probst v. Delamater, 100 id. 266; Sisco v. R. R. Co., 145 id. 296. The test is not whether the master omitted to do something he could have done, but whether, in selecting tools and machinery for their use, he was reasonably prudent and careful. Stringham v. Hilton, 111 N. Y. 188; Harley v. Buffalo Car Mfg. Co., 142 id. 31.

If the defendant had manufactured the eyebolt, that ciroumstanee might carry with it an implication that he knew, or ought to have known, it was welded and how it was constructed. But he ordered it from responsible and well-known manufacturers, and had the right to assume that it was properly made. Having acted as an ordinary man would under similar circumstances, he cannot be held to have been negligent.

Judge Cooley, in his work on Torts (2d ed., p. 657), says: “ The law does not require him ” (the master) “ to guarantee the prudence, skill or fidelity of thóse from whom he obtains his tools or machinery, or the strength-or fitness of the materials they make use of. If he employs reasonable care and prudence in selecting- or ordering what he requires in his business, such as every prudent man is expected to employ in providing himself with the conveniences of his occupation, that is all that can be required of him.”

It was held in Carlson v. Bridge Co., 132 N. Y. 277, 278, “that Hageman’s case, 13 N. Y. 1, presents an extreme application of the rule governing the liability of common carriers of passengers. But the rule applicable in cases of master . and servant is more favorable to the master.. Reasonable care, and not the highest efficiency which skill and foresight can produce, is the measure of the master’s liability, and he performs his whole duty by using .as much' care in the selection. of materials for the use of his servants. as a man of ordinary prudence in the same line of business would, acting in regard to his own safety, use in supplying similar things for himself were he doing the work.” Illustrations are given, concluding with the general result that a person in the position of the defendant must, to a large extent, rely upon the dealer- and manufacturer for the quality of materials used, and is not usually liable for imperfections not observable on inspection.

In Nelson v. Dubois, 11 Daly, 127, where the plaintiff recovered damages sustained by reason of the breaking of-a rope on a pile driver, the court, in reversing the judgment, said: “ There is no evidence in the case tending in the least to show knowledge in the master of whatever may have been , the condition of the rope, of1 of its being in a dangeroug state under circumstances charging him with knowledge. ■ It rests upon the plaintiff to establish this, and he having failed to furnish any proof warranting such a conclusion, the motion to dismiss the complaint should have prevailed.” See, also, Cregan v. Marston, 126 N. Y. 568; Kunz v. Stuart, 1 Daly, 431.

In Painton v. R. R. Co., 83 N. Y. 7, a brákeman in defendant’s employ was injured by the breaking of an eyebolt connecting the chain with the rod of a brake. • He sought, to recover damages, and it appeared that the eyebolt was defective in. not having been properly welded. There was no evidence of notice to defendant or any of its agents, nor was it shown that the defect could have been discovered by inspection. While a recovery was sustained by the . Court of Appeals upon other grounds, the court held it could not be sustained so far as it rested upon the imperfection referred to. See, also, Flood v. Telegraph Co., 131 N. Y. 603. But as it did x not .appear whether the defendant made the defective eyebolt ■or purchased it, and it was affirmatively proved that'the bolt was too small, they held that this was a defect of which the defendant was bound to take notice, and the jury should say whether it was sufficient to sustain the charge of negligence. Upon this last feature of the case, particularly, the finding by the jury in favor of the plaintiff was ultimately affirmed. There was no such allegation or proof in this case, and the fact that the' defendant did not make the eyebolt affirmatively .appeared. The features which made the Painton action a proper one for submission to the jury are absent here.

Every negligence case. has so many peculiarities of its own that the application of adjudicated cases, except as to general-principles, is matter of extreme difficulty. The process of discrimination and distinction will continue as often as the kaleidoscope of accident changes the facts and shifts responsibility.

Upon the proofs presented the nonsuit was properly directed (Linkauf v. Lombard, 137 N. Y. 426 ; Hemmens v. Nelson, 138 id. 517)., and the motion for new trial must be denied.

Motion denied.  