
    Walter Rollings, as Administrator, etc., of John Nicholas Myer, Deceased, Respondent, v. William M. Levering and William A. Garrigues, Composing the Firm of Levering & Garrigues, Appellants.
    
      Negligence — defective hooks furnished for a painter’s scaffold. — when they constitute an appliance—. neglect to test them — the making thereof by a fellow-servant.
    
    Where the foreman of a gang of painters directs a blacksmith in the employment . of their common master to make hooks to support the scaffold upon which the painters are to work, the painters being given no power of selection, but being required to accept the particular hooks furnished, thehooks constitute an appliance, and the master must use reasonable care in furnishing suitable and safe hooks, and he cannot delegate this duty to another in such a manner as to relieve himself from responsibility for their sufficiency.
    The fact that the blacksmith did not test the hooks is not alone proof of the defendants’ negligence, but is admissible, with other evidence, upon the question whether the defendants used reasonable care in furnishing the hooks.
    In such case, as the hooks constitute an appliance, the fact that the blacksmith was a fellow-workman of the plaintiff would be immaterial.
    Appeal by the defendants,. William M. Levering and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of October, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of November, 1896, denying the "defendants’ 'motion for a new trial made upon the minutes.
    The action was brought to recover the damages resulting from the death of the plaintiff’s intestate, a workman in the defendant’s employ, which was alleged to have been caused by the negligence of the defendants.
    
      Charles C. .Nadal, for the appellants.
    
      JE. J. MeCrossi/tx, for the respondent.
   Hatch, J.:

The hook which was used to support the platform upon which the deceased stood at the time of the accident was somewhat different from the hooks commonly used for that purpose. The condition which required that the platform should be swung .under the projection in order to reach the side of the- structure where the paint was to be applied necessitated the peculiar form of the hook in order to accomplish that result. Four hooks, substantially of this form, had been made; two some days before, which were then in use, and two which were used to support the platform which fell. The. deceased, therefore, had no power of selection of hooks, but could only make-use of the particular ones furnished. The hook became, therefore, an appliance used in and about the prosecution of the work, and the obligation rested upon the defendants to exercise reasonable care in furnishing" a hook suitable and safe for the purpose to which it'was to be applied. This duty to exercise reasonable care is absolute, and may not be delegated to another so as to relieve' the master from his obligation. (Tomaselli v. Griffiths Cycle Corp., 9 App. Div. 127.)

The evidence in the present case permitted of the conclusion that the hook broke by reason of its defective character, whereby the platform was precipitated to the ground, resulting in the death of the plaintiff’s intestate. ' This was founded upon- the testimony that - the hook, if made properly, of good iron, would support a weight of more than a ton. It broke under a strain not exceeding 450 pounds. Examination of the broken parts of the hook tended to establish that the iron was poor, that crystallization was apparent, and that the iron had been burned. This brings us to a consideration of the question whether the defendants were responsible for the condition of the hook, and whether they have discharged the obligation which rested upon them to furnish a safe and suitable appliance. One Boivie was foreman of- the painters and the deceased worked under, him. He was directed by superior authority -to make use of some discarded iron tie rods which had been removed from the Brooklyn bridge. He selected several of these rods and delivered, them to a blacksmith in the employ of the defendants, with a drawing of the form of the hook required, and directed him to make the same. The blacksmith did as directed. Boivie obtained, them after they were finished and delivered them to the deceased and his assistant, who fastened them to the cornice upon the building* and suspended the platform therefrom. Testimony was given which ténded to establish that an expert in iron might have detected ■upon inspection that the iron had been burned. But it is evident that this condition was not apparent to ordinary inspection, and the jury were authorized to find that a person, not expert in the examination of iron, would not by mere inspection be able to detect any defect therein, and one witness testified that defects of this character could only be detected by an actual test. It was also shown that the strength of the hook could have been easily and effectively tested by rapping it with a hammer or by'dropping it from a height, and. that by these means the weakness might easily have been discovered. In forging the iron a-test could be made and its condition be discovered. It is claimed by the plaintiff that none of these tests were made, in consequence of which the defendants failed in the discharge of the duty which rested upon them.

By the defendants it is claimed that the iron furnished for the hook was of good quality and that the blacksmith in forming it could and did determine that it' was not defective. ' His testimony upon this subject- is- not entirely satisfactory of the fact that-he tested the strength of the iron or that he possessed sufficient knowL • edge to make one. It does not appear that any request was made of him to test the -strength or quality, of the iron by Boivie or by any one else. He was -asked“ Q. What does the fact that a piece of iron an inch and a quarter thick that can be turned into an eye such as is shown on this piece, indicate as to the quality of the iron ? A. Well, that I never studied so muchas to go to that Q. Does it. indicate anything about the iron whether it is good or bad ? A.. "Tes, the iron will show for itself when you get the heat on it; I mean to say, that as a blacksmith, T could see when'it is heated whether or not it is good or bad ; I can tell a good piece'of iron as soon-as I get the heat on it, whether it is going to work good or bad. Q. In ease of a piece of iron or rod five feet long, or thereabouts, where the.eye or the end. has been turned as in this piece, does that indicate anything about the quality of the entire rod ? A.’No, sir; I don’t think it does; one end of it that I turned might be good and the other part be bad ; I can’t see all through the bar of iron, you know. Q. What is the usual way in which a blacksmith would test a rod of iron that is five feet long, used to put up a scaffold to hold painters on ? A. Well, to bend an eye like that you want it white hot. Q. What would be the test as to the quality of the iron % . A.' Well, you could tell the iron by whether it separated or not right in the eye ; right in a short bend like that; I heated the hook at other parts, only a little bit over cherry red for to bend the hook ; that is all; I heated it throughout of course. * * * Q. Did you.heat it enough to discover whether or not the iron was good or bad ? A. No, sir; it never showed no flaw one way or the other. By the Court: Q. He asked you whether you made enough test to determine whether'all' the iron was good or not ? A. Well, so far as that is concerned, why I did; the iron was good. Q. Was it what is a proper test and the usual test ? A.. Yes, sir ; it was good ; the iron was good.” This witness further testified that he did not burn the iron and that the pieces produced upon the trial were not burned. On cross-examination the witness testified that he made no further test than to make the hook, cut the thread and bend the eye. Being further pressed upon the subject,, this appeared: “ Did you test the iron before you. heated it ? A. I didn’t test it any further than by bending the eye; I fotind the eye bent all right. I did not test it before I heated it. I did test it after I heated it. I tested it by bending the eye. Q. Is that the only test that you made ? A. So far as working on the other part of it. That is the only test, and bending the other part. That is the only test that I could make. I do not know of any other test now that I might have made. Q. What I want to know and what I want you to answer up and down is : Is that the only test that you did make? A. Well, I couldn’t make . no further than that. After I had finished it I laid this iron down. It was taken away in the afternoon — in the evening by Mr. Boivie — took it away-himself, -r-1.saw him take it away. Mr. Boivie didn’t ask me to test it — anything about it.” It was quite permissible for the jury to find from this testimony, as we think, that the blacksmith made no test to determine the sustaining strength of the iron or of the hook, either before it was made or after. He was undoubtedly able to determine the character of the end of the iron which-he turned into the eye, mostly for the reason that it required good iron to turn the eye. But as to the other part he recognized, what the jury would be authorized to say, that the mere heating of it to about a cherry red would not test the quality of that part of the iron unless it broke or cracked in the process. The witness does not say that he made a test to discover any defect by this means; he only says that this was all he did, and he explicitly says that the turning of the eye would not disclose defects if existing in other parts. This fairly appears from the fact that the hook did not break in the eye, but in its other parts.' While the witness did say -in general terms that the iron was good, yet this was not conclusive, as he explains fully what he did in order to determine that fact. He knew of no other test that .he could make than by forming the hook. But this cannot avail as an establishment of the fact in the face of the other proof. The witness was not asked to make a test. The jury could say that he did not think one necessary, and that the only knowledge he possessed was such as his opportunity and experience gave him when he forged the hook, and that such knowledge was not sufficient or not sufficiently exercised to enable him to determine the capacity of the hook. In addition . to the proof tending to establish that no sufficient test was made of the iron or the hook, is the evidence of two witnesses that they called the attention of the foreman to the hooks and informed him • that they were not safe for use for the purpose intended. There was no explicit denial of this testimony by the foreman. Of course, liability of the defendants is not to be predicated alone upon the fact that the defendants failed to make a test of the hook, if the jury so found. The evidence of whether a test was made or omitted to be made was admissible, together with the other evidence in the casé upon the question of whether the. defendants had discharged their duty to exercise reasonable care in furnishing the hook. Hpon the whole ease we-are of opinion that a case was made by the plaintiff entitling him to have submitted to the . jury the question of the defendants’ negligence.

If there was' any question of contributory negligence upon the part of the deceased or the other person upon' the platform with' him, the verdict of the jury has answered it in plaintiff’s favor.

The court was asked to charge the jury that if the defect in the hook was occasioned by the negligence of the blacksmith it would constitute negligence of a fellow-servant, for which no recovery can be had. As we have already seen, the hook constituted an appliance, and, therefore, the primary duty was upon the master to exercise reasonable care in the discharge of the obligation. This duty he could not delegate to another. (Hankins v. N. Y., L. E. & W. R. R. Co., 142 N. Y. 416 ; Crispin v. Babbitt, 81 id. 516.)

We have examined the other rulings complained of and find no error therein.

The judgment should be affirmed, with costs.

All concurred.

Judgment and order unanimously affirmed, with costs.  