
    William McMullen, Respondent, v. The City of New York, Appellant.
    
      Negligence, — liability of a city, furnishing a derrick and, tubs to a, contractor, to an employee of the contractor who is injured, by a wire rope pulling out of the socket in a tub — effect of proof of the untwisting of the wire rope.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff, it appeared that Murray & Co. were engaged in delivering sand to the city of Ne.w York at one of the city piers' under a contract pursuant to which the city furnished the tubs and derrick, by which the sand was hoisted from the decks of the vessels in which it was shipped, and Murray & Co. supplied the shovellers who filled the buckets; that on the day of the accident the wire derrick rope pulled out of the socket by which it was fastened to the hook supporting the tub, injuring the plaintiff, who was a shoveller in the employ of Murray & Co. The rope was attached to the socket by placing it through the socket, separating the strands thereof and pouring in melted lead. This method of securing the rope had been in use by the city for upwards of nine years and no similar accident had ever occurred before.
    About two weeks previous to the accident the attention of the city’s engineer had been called to the fact that the rope was untwisted for a short distance above the socket and the engineer had determined that it was unnecessary to relead it. The engineer examined the rope on the ■ morning of the accident and found it to be in proper condition except that it had become untwisted as before mentioned. So far as appeared, such untwisted condition only affected the strength of the rope, and not its liability to pull out of the socket. One of the plaintiff’s experts testified that the method adopted by the city of semiring the rope to the socket was not, in his opinion, a safe method, while the city’s experts testified that it was a safe method.
    
      Meld, that a judgment against the city of New York entered upon a verdict in favor of the plaintiff should be reversed;
    That, as the plaintiff was not in the employ of the city of New York, the latter was not bound to furnish him with proper tools and appliances with which to do his work, but was simply under the. obligation to use the care of an ordinary person to avoid injuring him;
    That the fact that the plaintiff’s expert considered the method of fastening the rope to the socket unsafe and improper was not sufficient, in view of the testimony of the other experts to the effect that such method was safe and proper, to sustain a finding of negligence on the part of the city;
    That, it appearing that the untwisted condition of the rope prior to the accident only affected the strength of the rope, and not its liability to pull out of the socket, negligence could not be imputed to the city because of the continued use of the rope with knowledge of such condition.
    Lauohlin, J., dissented.
    
      ' 'Appeal by the defendant, The City of New York, from a judg- ' ment of the Supreme Court in-favor of the plaintiff, entered in the •office of the clerk of the county of New York on the 8th day of April, 1904, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 14th day of April, 1904, -denying the defendant’s motion for a new trial made upon the minutes. . '
    This action was brought to recover damages for an injury sustained by thé plaintiff through the alleged negligence of the defendant.
    
      Theodore Connoly, for the appellant.
    
      Stillman F. Kneeland, for the respondent.
   Ingraham, J.:

The plaintiff was-in the employ of Murray & Co., who had a.contract with the city of New York to deliver sand to the city. The contract provided that.“ The sand required to be delivered at the West Fifty-Seventh Street or at the East Twenty-Fourth -Street yard will be. shovelled into1 tubs to be furnished by the Department of Docks and Ferries, by the furnisher, and the tubs will' be tended and- dumped by the furnisher.' The Department of .Dock's and Ferries will hoist the ' sand from the deck of the vessel or scows to the height'required to dump the tubs, into a car,-which will be trammed and dumped by the furnisher in the bins on the pier at West Fifty-Seventh Street or at East Twenty-fifth Street, as directed by the Engineer.” Under this contract Hurray & Co. on December 17,1900, were engaged in delivering sand at the East Twenty-fourth street yard. The sand was shovelled by employees of Murray & Co.,'of whom plaintiff was one, into tubs furnished by the department of docks. The department of docks then, hoisted the tubs from the vessel to the height required to dump the tubs -into. cars. T.he dock department had installed upon "the East Twenty-fifth street dock a derrick for hoisting the sand from the hold of the vessel. This consisted of an upright mast to which was. attached a boom extending out over the water. To this there was attached a. wire rope running on a pulley .atithe end of the boom which was ■ fastened in a socket to which was attached a hook. The method of attaching this rope to.the socket was to put the rope through the socket, separate the strands and pour in melted lead. This- rope had been leaded into the socket on March- 26, 1900, prior to the accident on December 17, 1900. The rope had been tested up to a strain of 18,100 pounds, and a rope of this character would stand a strain of about 26,000 pounds. The weight of a tub of sand was 1,300 pounds. Lead sockets of this kind had been used in the department for upwards of nine years and no accident had ever happened, none of the sockets had ever pulled out, and none of the witnesses testified that they had ever known of a socket leaded as this was to pull out. This rope had been leaded into this socket by an engineer in the department of docks, who described the method as follows: The rope is put through the socket about two inches. It is then put in the furnace and heated. The wires of the different strands of the rope are then untwisted and opened out thoroughly. Then melted lead is poured into the socket until it is flush with the collar, and when it cools the connection is made. There was evidence that on the fifth of December, before the accident, the captain of the schooner who had charge of the guy rope attached to this tub called the engineer’s attention to the rope just above the socket, which appeared as if from the twisting of thé rope it had gotten out of the socket, and asked the engineer if it would not be a good idea to cut the end of it off and relead it. The engineer called this to the attention of the chief engineer in charge of the work, and asked if it would not be a good idea to relead the rope, but the chief engineer said that it was not necessary as it would become untwisted from the constant use, that the manufacturers of the rope had guaranteed it to lift six or seven tons arid that one strand of the rope would hoist a tub of sand. . The.chief engineer testified that he examined this rope the morning on which the accident occurred ; that about four inches above the socket the rope was a little bit out of strand, that is, the strand was a little loose, unravelled a bit; that' the lead was not loose in the socket, and when he examined the rope he found everything all right, only the rope had become untwisted about four inches above the socket. It does not seem to have been suggested by any one that there was any danger of the rope pulling out of the socket. The only question was as to whether unravelling the rope would weaken it so ' that it w’ould break, and as one strand of the rope was sufficient to bear the strain of lifting one of these buckets .full of sand, it was not considered that there was any danger of the rope breaking, and ás á matter of fact the ro.pe did not break, the accident being occasioned by it being pulled out of the socket. A witness was called by the plaintiff and testified as an expert that there were two or three proper methods of inserting a steel rope in such a so'cket; that one. of the methods was to pull the rope through, unravel the ends, drive .steel pegs in and then pour soft molten lead; that another was to insert the rope and turn the ends up and drive the ends back into the socket and then pour in the molten lead. This witness was then shown the end of the steel rope that had prilled out of this socket which was produced by the defendant, and was asked whether or. not. they were put in by bending them over, as the witness had described, and the witness said that he should think not;. that he did not believe that the ends had been bent over, that it was an unsafe and improper way. to put the wire in straight, without any pegs ; that a. twisting strain would tend to loosen the. lead in the socket and tend to pull the lead out. Upon cross-examination he had testified that he never knew of a case where twisting had pulled a rope through a socket; that he knew that a twisting motion caused more strain on the rope than a straight pull; that when a rope was properly put in. a socket the rope would break first, because the witness had never known one to pull out, but had known ropes to break. The engineer who had fastened the rope in the socket testified that he had been employed by the defendant for' upwards of ;twelve years and for nine years had constantly adopted this method, and that it had never béen known to pull out, and that it was the usual method adopted in the city of Few York, and this was not contradicted-.

A witness called by the plaintiff had sworn that in his opinion it was not a safe method;. but that was simply his individual opinion, and there was no evidence that any one else was' of the . same opinion.. There was no evidence to show that these engineers were not competent men, perfectly familiar with the methods ;in general use for doing this kind of work; that the best materials were not •supplied or .that there was the slightest reason to suppose that a rope and a.'bucket connected by this, method were not perfectly safe- and such as were generally itsed for the purpose. The plaintiff was not in the employ of thé defendant, and the obligation which exists as between a master and servant to furnish a servant with proper tools and appliances to do this work did not exist.

. Assuming that the rule as stated in Connors v. Great Northern Elevator Co. (90 App. Div. 311) is correct, and that although' no relation existed between the plaintiff and the defendant, still the defendant would be liable for negligence which resulted in' causing a man employed by its contractor an injury, it is hot Cnough to show such negligence that in the opinion of some expert the riiethod adopted was not a proper method. The fact that an expert considered the method adopted as not safe or pioper, when other experts considered that it was safe and proper,, is not sufficient to sustain a finding of negligence. (Herzog v. Municipal Electric Light Co., 89 App. Div. 569; affd. on opinion below, 180 N. Y. 518; Reiss v. N. Y. S. Co., 128 id. 103.) In Reiss v. N. Y. S. Co. it is said : “ The accident was a very unusual one, which had- never before happened in the business of the defendant, and it was not bound to anticipate or guard against it.” It seems to me quite clear that the adoption of this method of fastening the wire rope in the socket of the hook was not negligence which would sustain an action by the plaintiff against the city of New York.

The question is then presented, whether the condition of the rope just before the accident, and which was called to the attention of the engineers, was such that they should have anticipated the accident, and that it was negligence to use the/appliance after their attention was called to it.' But all that appeared from that inspection was the fact that the strands of the rope had become untwisted. The defendant’s engineers, seeing that condition, examined it and after such examination were satisfied that this untwisting of the rope would not affect its strength so as to make it probable or possible that using it to hoist this sand would cause the rope to break. So far as appears, that was the only condition that called for an examination. It was not suggested that there was any evidence that the rope was liable to pull out of the socket, and all of the experts united in saying that this rope would bear a weight.of 26,000 pounds and that the bucket of sand weighed but little over 1,300 pounds, and their judgment was correct that the rope was in no danger of breaking,- because it did nbt break. We must bear in mind that the defendant was under no'obligation to the plaintiff except the obligation that every one is under to a person lawfully upon or adja- ¡ cent to his premises to use the care of an ordinary person so as to avoid- injuring the other. ' I do not think there is any evidence here to justify a finding that the defendant failed in this duty. It; had employed competent engineers to do the work upon whom it ' imposed the duty of properly fastening this rope in this socket. ■The method that they adopted had been. the method in use for • many fyears and no accident bad ever happened. They constantly examined'and inspected the appliance, examined it upon the morning of the accident, and in their best judgment determined that it was safe. Upon no principle can it be held that the defendant was responsible for the result of an accident which happened because of an unusual condition that had never before been known to exist and which the defendant was not bound to anticipate.

If these views are correct, there was no evidence to justify a verdict of negligence against the defendant, and: the- judgment and order must be reversed and a new trial ordered, with costs to the appellant, to abide the event. . ■

Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred; Laughlin, J., dissented.

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