
    Patrick Connors, as Administrator, etc., of William Connors, Deceased, Appellant, v. The Great Northern Elevator Company, Respondent.
    
      Negligence — liability, to a servant of a third person,-of one who furnishes a-defective appliance to be used in the work in which the servant is engaged.
    
    A corporation owning a grain elevator and a steam shovel and other appliances used in transferring grain from vessels into the elevator had an arrangement with an association called the Lake Carriers’ Association, pursuant to which, when a vessel loaded with grain came to an elevator belonging to the corporation, scoopers in the employ of the Lake Carriers’ Association would remove the cargo of grain with the steam shovel and tackle. The elevator company-received, for the use of its shovel and appliances, a dollar and twenty cents for each thousand bushels unloaded. It employed a man known as a shoveltender to exercise general superintendence over the steam shovel and to furnish any supplies or make any repairs necessary.
    
      Held, that the elevator company, having for an adequate compensation undertaken to furnish the appliances for unloading the grain, assumed an obligation to the scoopers to furnish fitting appliances, and that the scoopers had a right to assume that the elevator company had performed this obligation;
    'That the elevator company was, therefore, liable for the damages resulting from the death of a scooper, who, while engaged in the performance of his work, was killed in consequence of the breaking of a defective rope used in connection with the steam shovel, where the result was one which might have been anticipated.
    McLennan, P. J., and Stover, J., dissented.
    Appeal by the plaintiff, Patrick Oonnors, as administrator, etc., •of William Oonnors, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk •of the county of Erie on the 6th day of December, 1902, upon the •dismissal of the complaint by direction of the court after a trial at the Erie Trial Term.
    
      Daniel J. Hanley, for the appellant.
    
      Frank Gibbons, for the respondent.
   Spring, J.:

The plaintiff’s intestate was a scooper employed by the Lake Car riers’ Association in unloading grain from the boat Thomas May.tham into the elevator owned by the defendant, a domestic corporation, in the city of Buffalo. The steam shovel and appliances used in elevating the grain were owned by the defendant. They were kept in a place accessible to the scoopers, and whenever a boatload of grain came to an elevator belonging to the defendant in the city of Buffalo the scoopers obtained the shovel and tackle and disembarked its load of freight; The defendant received for the use of its shovel and appliances one dollar and twenty cents for each 1,000 bushels unloaded. It kept a man, called the monthly man, named Cavanaugh, in this instance in its employ, who was present at the unloading as its representative to furnish any supplies needed in the operation of the steam shovel and with general superintendence over the same. If any part of this gearing was inadequate or needed remedying this employee supplied it. As one witness put it: “I know what the duties of the shovel tender are, Cavanaugh is a monthly man and is also called a shovel tender. He was employed by the elevator company. I have seen him about work there. He would look after the leg, put the leg in and take it out again of the hold of the boat and look after the leg as it was put in and taken out and see that it was placed right. He had to see that the rigging and machinery was put up right before the scoopers started to work, they had to put it up to his satisfaction.”

A heavy block of wood called the snatch block was attached to an upright or stanchion by a line used to draw the grain into the leg extending from the hold of the boat to the elevator and up which the grain was drawn. Connors, the intestate, was working in the hold of the boat in November, 1901, with about 100 other workmen unloading the grain when the rope (which was defective and insufficient) holding up this block parted and the block fell, striking Connors and causing his death. Two or three days before the accident Cavanaugh, the defendant’s representative, put in this rope, when the following occurred, as testified to by the assistant boss scooper: Just before the accident there was a snatch block on the deck and no line on it and I told Cavanaugh to put a line on it. This was a few days before the accident or a few jobs I don’t know. I told him a few jobs before this one prior to this one to put a line on the block, so he says, All right, I will put one on,’ and he went into the tower. A linó something like this was lying in the tower and he started to put this on. I said, ‘ What are you going to do with that \ ’ He says, ‘ Put it on the snatch block.’ I spoke, ‘Not a line like that % ’ And he said, ‘Tes.’ I said, ‘It will kill somebody if you do.’ He said, ‘ What do you want me to do ? Go and buy a line ? ’ I says, ‘ All right, go ahead,’ and he put it on.”

The intestate was not in the employ of the defendant. The appliances, however, were furnished by it to use for the purpose of unloading the grain. Its man had charge of this business. > The appliances were furnished at a specific compensation and were used as designed and intended. Is the defendant liable ?

When the defendant turned over the steam shovel and its appliances to the Lake Carriers’ Association to be used in unloading grain, it knew that the grain was to be taken out by a large number of scoopers. It impliedly invited these men to go into the hold of the freighter with the assurance that it had furnished appliances which rendered the performance of the work reasonably safe so far as such tackle was concerned. Its obligation to the men who did the work was to furnish fitting appliances. They had a right to assume that this had been done. The defendant, to be sure, .made its agreement with the Lake Carriers’ Association and there was no privity of contract between the elevator association and the plaintiff’s intestate in that he was not in its employ. The liability of the defendant is not contractual in its character. (Barrett v. Lake Ontario Beach Imp. Co., 174 N. Y. 310, 314.) It undertook to furnish appliances for a particular work, the negligent performance of which duty it knew imperilled the lives of many men. Having for an adequate compensation undertaken to furnish this tackle with full knowledge of its use, it assumed a responsibility to those who were injured while it was being operated precisely as intended.

In Coughtry v. Globe Woolen Company (56 N. Y. 124) a firm of contractors was putting a cornice on defendant’s mill. The defendant’s men erected a scaffold for this purpose. The plaintiff’s intestate was employed by the contractors in putting up the cornice. The scaffold, by reason of its improper construction, fell while the plaintiff’s intestate was at work upon it, causing his death, and the Court of Appeals reversed the judgment of the Géneral Term, which affirmed a nonsuit. The court say (at p. 128): “It is evident from the nature and position of the structure that death or great bodily harm to those persons would be the natural and almost inevitable consequence of negligently constructing it of defective material or insufficient strength. It was clearly the duty of the defendant and its agents to avoid that danger by the exercise of proper care. * * * This duty was independent of the obligation created by the contract. If neglected it would be no^ answer to the action to' say that the defendant was also guilty of a breach of its contract; nor would it be any better answer to say that by the terms of the contract it was permitted so to construct the scaffold as to imperil the lives of the workmen.” (See, also, Devlin v. Smith, 89 N. Y. 470, 477 et seq.; Hannigan v. Union Warehouse Co., 3 App. Div. 618; affd., 157 N. Y. 711.)

It is also to be noted that the death of the plaintiff’s intestate was. the natural and. probable result following the parting of the rope and the consequent falling of the block. The injuries were not unexpected, but were to be anticipated readily, and it was incumbent upon - the defendant to protect the men against an accident which it could easily prevent.

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

All concurred, except McLennan, P. J., and Stoves, J., dissenting.

Judgment reversed and new trial ordered, with costs to the appellant to abide event. '  