
    Anna Skapura, as Administratrix, etc., of John Smith, Deceased, Respondent, v. National Sugar Refining Company, Appellant.
    
      Negligence —a servant loading coal from, the hold of a vessel into a bucket, hilled by the bucket falling upon him —use of a hook, good of its hind, when a better hook was in the market.
    
    In an action brought against an employer to recover damages for the negligent killing of an employee, it appeared that, for the purpose of unloading coal from vessels moored alongside its docks, the employer maintained a hoisting apparatus consisting of a cable operated by steam power and a bucket which was attached to the cable by means of an iron hook; that the deceased servant and a companion were stationed in the hold of the vessel filling the bucket; that on one occasion the two men filled the bucket, attached the hook in the usual way and signaled the engineer to go ahead and then went to work directly under the bucket, without making any effort to ascertain whether it was ascending in safety; that, while they were so engaged, the bucket fell upon the intestate.
    The intestate had been employed in this work for at least a month prior to the accident.
    The only negligence alleged on the part of the defendant was based on the character of the hook. The hook in question was such as was commonly used and was not shown to be in any way defective for one of its kind. It was the same or similar to those which had been used by the defendant for a period of eight years without accident. Evidence was given that another kind of hook, which, if used, would have prevented the accident, had been on the market for eight or ten years, and that three or four corporations had used the improved hook for two years.
    
      Held, that the evidence was not sufficient to warrant the submission to the jury of the question whether the defendant was negligent in not supplying the improved hook;
    That the evidence did not establish that the deceased was free from contributory negligence. (Per Woodward, J.)
    Hooker, J., dissented.
    Appeal by the defendant, the National Sugar Refining Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 21st day of April, 1902, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 17th day of April, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      John Vernou Bouvier, Jr., and Frank V. Johnson, for the appellant.
    
      F. W. Catlin, for the respondent.
   Woodward, J.:

Notwithstanding the constant tendency of human sympathy to award damages for injuries received by employees through the alleged negligence of employers, the appellate courts have resolutely insisted that the plaintiff was bound, as a condition of such recovery, to establish, by evidence, the negligence of the employer and the absence of contributory negligence on the part of the employee (Wieland v. Delaware & Hudson Canal Co., 167 N. Y. 19, 23), and it is because the plaintiff has failed to establish either of these propositions that we are forced to reverse the judgment now before us. The plaintiff, as administratrix of the goods, chattels and credits of John Smith, deceased, brings this, action to recover damages for the death of the said John Smith, such death being alleged to have been caused by the negligence of the defendant, without fault or negligence on the part of the deceased, and the trial resulted in a verdict in favor of the plaintiff. The defendant appeals from the judgment and from an order denying a motion for a new trial upon the usual grounds.

The complaint alleges that on or about the 25th day of May, 1901, the said John Smith, deceased, was employed as a laborer by the defendant in and about its factory, and was assigned to and engaged by the defendant in the unloading of coal from a barge or other vessel moored alongside the defendant’s dock adjacent to said factory; that the unloading of said coal from said barge or vessel was effected by means of a rope or cable connected with an overhead hoisting machine operated by steam power; that in the unloading of said coal from said barge or vessel an iron bucket was attached to said cable or rope, which was lowered from said hoisting machine into said barge or vessel, there to be filled with coal; that after being so filled the said bucket was hoisted up by means of said machine and cable or rope, to be dumped and deposited in a receptacle connected with said machine and said factory ; that in order to prevent the said bucket from falling before it reached the said receptacle, the same was fastened and secured to said cable or rope, and held in proper position by an iron hook attached to said cable or rope ; that on the said 25th day of May, 1901, the said hoisting machine was defective, insecure, dangerous, inadequate and out of order, in that the said hook holding the said bucket filled with coal was allowed to loosen the said bucket and give way, and failed to perform its function until it reached the said receptacle overhead, of which defect, insecurity and danger the defendant for a length of time knew, or, by the exercise of proper care, ought to have known.” This is the only allegation as to the defendant’s alleged negligence, and the evidence, which was received over the defendant’s objection and exception, did not attempt to establish any defect in the machine or in the hook in use, but sought to show that there was another kind of hook in the market which was supplied with a safety snap, the inference being that if this kind of a hook had been used, the accident would not have occurred. The evidence to show that this hook had been in the market and was commonly in use was limited to the testimony of a single individual, who was able to name only three or four places where the new kind of hook was in use, and he had only known of their use during a period of about two years, although there was testimony that such hooks had been upon the market for eight or ten years, so that the evidence, •conceding it to have been the duty of the defendant to use reasonable care to keep its apppliances up to date, was scarcely sufficient to show any negligence on the part of the master in the use of what was conceded to be such a hook as was commonly in use in moving heavy articles, and which was not shown to bo in any way defective for one of its kind. When to this is added the undisputed evidence of the defendant’s witnesses that the hook in use was the same or similar to those which had been used by the defendant for the performance of this kind of work for a period of eight years, and that no accident had ever resulted from such use prior to the one now under consideration, it becomes evident that the plaintiff has failed to establish by competent evidence the neglect by the defendant of any duty which he owed to the plaintiff’s intestate. The defendant was not bound to furnish absolutely safe appliances under all circumstances ; his duty was to exercise reasonable care in providing the plaintiff’s intestate with reasonably safe machinery and appliances for the performance of the work which he was to do, and until the plaintiff has established that the hook in use was nota reasonably safe appliance, she has failed to establish a right of recovery. The fact that there may have been a better hook does not establish that the hook in use was not reasonably safe, and while there are cases in which it has been held that the defendant could not close his eyes to improvements, it will be found that they were cases in which the dangers to be apprehended were great, and the use of the improvement was so open and notorious and its utility so thoroughly established, as to compel the inference that the master had been negligent in his duty in failing to adopt such improvement. This might be true of a railroad company which refused to use air brakes in the operation of its fast trains, but we cannot believe, in the mere matter of a simple hook used in hoisting a coal bucket, where the defendant for a period of eight years had used a similar hook, without accident, that negligence may be predicated upon the fact that a different hook has been on the market for a number of years, and that three or four corporations have been known to use the improved hook for a period of two years.

But if it be conceded that the evidence of the negligence of the defendant was sufficient to warrant the submission of the question to the jury, this case is absolutely devoid of any evidence of lack of contributory negligence on the part of the plaintiff’s intestate. The evidence showed that the deceased was engaged in shoveling coal into a bucket used for hoisting coal from the hold of a barge to a. receptacle in the defendant’s factory; that the hoisting machine operated by steam, was elevated about seventy feet above the hold of the vessel, and that a rope with the hook in question was lowered from an extended arm and was attached by the deceased and the. only witness of the accident to the bucket when it was filled with coal; that they then gave the signal and the engine raised the load rapidly to the extended arm, where it was carried by a contrivance to the point of dumping. The hook was personally handled either by the deceased or his companion, and if it was not a proper hook this fact was certainly as obvious to the deceased as it could have been to the defendant. The evidence shows that the deceased had worked with this apparatus at least a month prior to the accident, and he must be assumed to have known the method of operation and to have known and accepted the obvious dangers of his position. There is not the slightest evidence of the exercise of any care on the part of the deceased, and the cases are unanimous in holding that the burden is upon the plaintiff to show affirmatively that the deceased was free from negligence contributing to the accident. (Whalen v. Citizens' Gaslight Co., 151 N. Y. 70.) It is true that in some cases the courts have accepted very slight evidence of care on the part of the decedent, where there were no eye-witnesses, but the rule has never been relaxed where there were such witnesses. In the case now before us the plaintiff introduces the fellow-laborer of the deceased, but he testifies to no act on the part of the latter from which a jury might properly infer that he exercised reasonable care. The evidence is that the two men filled the bucket, attached the hook in the usual way and signaled the engineer to go ahead, and that then the two men began shoveling or digging away the coal so that they could reload the bucket with greater ease upon its return; that is, knowing the kind of hook in use, the deceased aided in fastening the bucket, gave a signal for the removal of the same and then went to work directly under this bucket containing half a ton of coal, without so much as a glance, so far as the evidence shows, to determine whether the bucket was going up all right to the point where it would be carried away. Surely if there was any reason to apprehend danger from the use of this hook it was known to the deceased; he had full opportunity to know all about it, and yet, so far as the evidence goes, he connected the hook with the bucket, gave the signal, and then stepped directly under the bucket and went to work without a single precaution. The bucket, for some reason which is not fully explained in the evidence, fell and killed the plaintiff’s intestate, but so far as we are able to discover from the record, this was not under such circumstances as to impose liability upon the defendant. 'The mere fact that an accident has happened does not give rise either to the presumption of negligence on the part of the master, as a general proposition, nor yet to the absence of contributory negligence on the part of the deceased. These propositions must be proved affirmatively. (Whalen v. Citizens’ Gaslight Co., supra; Wieland v. Delaware & Hudson Canal Co., 167 N. Y. 19, 23.)

The judgment and order appealed from should be reversed and new trial granted, costs to abide the event.

Bartlett, Hirsohbero- and Jenks, JJ., concurred on the ground that the proof failed to establish defendant’s negligence; Hooker, •J., dissented.

Judgment and order reversed and new trial granted, costs to abide the event.  