
    Luigi Gagliardi, as Administrator, etc., of Tony Gagliardi, Deceased, Respondent, v. Godwin Construction Company, Appellant.
    First Department,
    June 28, 1912.
    Master and servant — negligence — death of employee struck by beams hoisted from excavation — duty to furnish safe appliances — instructions.
    In an action to recover damages for the death of plaintiff’s intestate, who was hit by beams which were being hoisted from an excavation to the sidewalk, the plaintiff claimed that the chain furnished by the defendant was unsuitable in that the ring was too small to fit the hook of the derrick. At the trial the issue was narrowed by stipulation to the question whether the beams slipped out of the chain, or whether the chain was improper and fell off with the beams, jHeld, that it was error to charge that it was the “unqualified” duty of the defendant to furnish safe appliances, and to refuse the request of the defendant to charge that if the jury believed “that the chain remained suspended from and attached to the hook of the derrick after the happening of the accident, that then the question of whether or not the ring was too small or the hook too large, is entirely immaterial and is removed from the case, and that them verdict must be for the defendant. ”
    Appeal by the defendant, the Godwin .Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of blew York on the 1st day of December, 1911, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Edward M. Grout, for the appellant.
    
      Charles Goldzier, for the respondent.
   Miller, J.:

The plaintiff’s intestate, while in the defendant’s employ, was killed by being hit by some beams which were being hoisted from an excavation to the sidewalk. The plaintiff’s claim. of negligence was that the chain furnished by the defendant was unsuitable in that the ring was too small to fit onto the hook of the derrick, and that as a consequence, as the beams were being lowered to the sidewalk the chain fell off and allowed them to hit the deceased. At the opening of the trial, by stipulation, the issue was narrowed to the question whether the beams slipped out of the chain or whether the chain was improper and fell off with the beams. The court charged at the request of the plaintiff “ that it was the unqualified duty of the master, the defendant in this action, to furnish the plaintiff with necessary safe and suitable appliances for' the prosecution of the work, ” and refused to charge the following request of the defendant: I ask your Honor to charge the jury that if they believe that the chain remained suspended from and attached to the hook of the derrick after the happening of the accident, that then the question of whether or not the ring was too small or the hook too large, is entirely immaterial and is removed from the ease, and that their verdict must he for the defendant.” The exceptions to said charge and refusal to charge present the serious obstacles to the affirmance of this judgment.

The charge excepted to in effect made the master the insurer, whereas the rule is elementary that only due, i. e., reasonable care, is required. In the main charge the court had correctly stated the rule, and it is difficult' to understand why cotinsel should imperil a verdict by making such a request; The word “ unqualified ” must have been understood by the jury in the sense of absolute.” However, if that exception stood alone, we might not reverse the judgment, in view of the narrow issue presented to the jury, it being virtually conceded that the chain was not a proper appliance if the ring did not fit onto the hook of' the derrick. But by the refusal to charge as requested by the defendant, the jury were virtually permitted to find a verdict for the plaintiff, even though they found with the defendant' on the single issue which.by mutual consent was litigated, i. e., whether the beams slipped out of the chain or whether the chain fell with the beams from the derrick. Of course, if the chain remained suspended from the derrick, the relative size of the ring and the hook had nothing to do with the accident, which, in such case, must have been due to the fact that owing to the negligence of a fellow-servant the beams were not properly secured by the chain.

The judgment and order must be reversed, and a new trial granted, with costs to appellant to abide the event. .

Ingraham, P. J., Laughlin, Clarke and Dowling, JJ.,. concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  