
    Mary Quigley, as Administratrix, etc., of Michael Joseph Quigley, Deceased, Appellant, v. William M. Levering and William A. Garrigues, Respondents.
    Negligence— a trolley running off an elevated track in consequence of the failure of an automatic device to work —formation of a substance composed of oil and dust preventing its proper operation.
    
    Owners of a factory who maintain therein an elevated track, consisting of three sections which can he moved laterally so as to make a junction with another track, and furnish an automatic contrivance designed to prevent the trolley, which travels upon the elevated track, from running off when one of the sections was removed, are not liable for personal injuries sustained by an employee in consequence of the failure of the automatic device to work while-a fellow-employee was pulling the trolley along one of the sections without observing that the continuing section was not in place, where it appears that the entire apparatus was exposed to view; that it would have been a proper machine without the automatic device; that it had worked efficiently for several months; that there were no radical defects in it, and that the rules of the factory forbade the employees to use any appliances without inspecting them to see that they were in good order.
    Where the failure of such device to work is owing to the formation on the sliding plate of a gummy substance composed of oil and dust, resulting from the-omission to inspect and properly oil the apparatus, the negligence is that of a fellow-servant.
    
      Appeal by the plaintiff, Mary Quigley, as administratrix, etc., of Michael Joseph Quigley, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 18th day of February, 1899, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 1st day of March, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Philo P. Safford, for the appellant.
    
      Eugene L. Richards, Jr., for the respondents.
   O’Brien, J.:

This action was brought to recover damages for the death of the plaintiff’s intestate, which, it is alleged in the complaint, was caused by the negligence of the defendants, his employers, who were manufacturers of architectural iron work, and the plaintiff’s intestate was one of their workmen. On the 24tli of December, 1896, while at work in the defendants’ factory, the decedent was struck by part of an apparatus, known as a trolley,” which fell from a track about sixteen feet above him. He received injuries from Avhich he died. The trolley was an apparatus moved by Avlieels, and when in operation ran along an elevated track consisting of three longitudinal sections. From the trolley were suspended iron chains. The apparatus ivas used for moving beams or other heavy material. The track ran north and south. Its three sections were movable laterally; that is to say, they could be shifted east and west, so as to make a junction Avitli another track. The defendants devised and had in use AA'hat is called an “ automatic ” arrangement designed to prevent the trolley from running off the track and falling, when one of the sections Avas removed. This “ automatic ” consisted of certain levers, Aveights, bars and sliding plates, by the use of which when one section Avas moved aivay from another, a “ stop ” dropped by its oavh Aveiglit, and raised bars so that the trolley could not pass beyond the end of a section; and Aviien the sections were brought together, the “ stop ” was lifted by ■ means of beveled edges of sliding plates coming in contact Avitli each other, thus rendering the continuous track clear. The automatic ” was a contrivance intended to make the overhead track more secure than it would have been without it.

At the time the accident occurred, the northern section of the track had been moved to the westward. The trolley rested upon the middle section. The plaintiff’s intestate was at work at a point some feet north of the middle section and in a direct line with that section. He was working near a punching machine. He and two of his fellow-workmen were busy with a beam for the purpose of suspending it. One of these fellow-workmen (Bertennan) told the other (Jones) to bring the trolley. Jones pulled the chain attached to the trolley to drag it along, exerting, as he says, more than the usual force. The “ automatic ” failed to work at the north end of the middle section. The trolley ran off and fell on Quigley. After the accident, it was observed that there, was nothing the matter with it, except that there was dust and oil, making a heavy and gummy substance where the sliding plates were designed to meet. There-was a superintendent of the shop (Bruggeman) and a foreman (Williams), whose duties were, among other things, to take charge of the shop and the men employed therein and to oil the automatic ” and see that the machinery was kept in good order. There is" some proof that the device of the automatic,” which had been in use for four or six months before the accident, did not always work effectively, some slight derangement occurring in its operation on one or two occasions. There is evidence to show that everything connected with the track and the position of the sections and the trolley was exposed to view, so that every employee could see and observe precisely what its operation was, and there was a printed notice given to each workman on pvery Saturday night on the envelope containing his wages, cautioning all employees to exercise all care to prevent accidents, forbidding them to use any tools, rope, timbers or other appliances, without carefully inspecting the same, to see that they were in good order. At the close of the trial, the court directed a verdict for the defendants, and from the judgment entered upon that verdict the plaintiff appeals, claiming that the defendants are liable upon the proofs, on the ground that it was shown that they were guilty of negligence in not providing a reasonably safe place for the plaintiff’s intestate to work in; that they did not supply a proper and safe apparatus connected with the machinery; that they did not properly inspect or provide for the proper inspection of such appliances as were furnished; that they failed to promulgate and enforce suitable rules for the use of the appliances, and that they employed incompetent workmen.

We concur in the view of the trial justice that the proof in the case was not sufficient to establish that the defendants did not furnish a reasonably safe place for the plaintiff’s intestate to work in or reasonably safe machinery and appliances. As the evidence is presented, it is quite clear that the peril to which the plaintiff’s intestate was exposed was that of the trolley being moved from the middle section and falling off while the northerly section was disconnected or moved away. It is argued that it was the defendants’ duty to provide against that contingency, and it is perfectly clear that such provision was made. There is no proof whatever to show that there was any inherent defect in the “ automatic,” which was designed to prevent such an occurrence as that which happened, nor is there any satisfactory proof to show insufficiency in the “ automatic” to respond to the use for which it was intended, so far as its design and the material of which it was .made and its general construction are concerned. All that can be said concerning it at the time the accident occurred is, that for some reason it did not then operate so as to stop the trolley at the northerly edge of the middle section. The evidence would seem to indicate, although that is not in reality shown, that the formation of the gummy substance above alluded to interfered with the action of the appliances. We do not think it can be said in any just sense that the defendants were responsible for that condition if the accident is to he ascribed to it. They had provided what they considered to be and what apparently was an additional safeguard to the trolley. It had been tried and tested, had been in constant use for months; and only on one occasion had it failed to answer its purpose, and what then caused it to fail appears to have been remedied. There were no radical defects in it, and the defendants were entitled to rely upon their belief that it would be a sufficient protection if kept in order. Positive instructions had been given by them to their superintendent or foreman to keep all machinery in good order. They had discharged their duty to their employees in that regard. They had given notice to all their employees not to use machinery unless they saw that it was in good order, and they had provided by instructions for inspection of the machinery, tools and apparatus used in their shop.

The unfortunate occurrence which resulted in the death of the plaintiff’s intestate was brought about by the carelessness of Jones in pulling the trolley along the middle section without observing (for he swears that he did not observe it) that the northerly section was out of place. That the failurb of the automatic ” to work contributed to the accident is doubtless true. If it may be assumed that the reason of its failure to work was the formation of the gummy substance composed of oil and dust and dirt, the failure to inspect and properly oil the apparatus was the negligence of a fellow-servant of the plaintiff’s intestate. The defendants had furnished means and conveniences for keeping the machinery in condition for safe operation, and some one had been employed whose duty it was to use those means arid conveniences. The neglect to use them is not chargeable to the master. (Webber v. Piper, 109 N. Y. 496.)

The judgment and order must be affirmed, with costs.

Rumsey and Patterson, JJ., concurred.

Van Brunt, P. J.:

I concur. I do not think that there would be any negligence on the part of the defendants shown if the automatic device was out of order. The trolley would have been a proper machine without it, as is conceded; and the endeavors of the defendants to' make the machine safer than a proper machine would be ought not to be made the means of fastening a liability upon them.

Rumsey, Patterson and McLaughlin, JJ., concurred.

Judgment and order affirmed, with costs.  