
    D’ARCY v. LONG ISLAND R. CO.
    (Supreme Court, Appellate Division, Second Department.
    November 22, 1898.)
    Injury to Employe—Defective Appliances.
    Plaintiff, an empioyé of defendant railroad.company, was injured, while unloading a car standing at a station, by the slipping of an iron plate or plank used to connect the car with the station platform, over which hand trucks were run in removing the freight. The plank was not defective, except that it was not furnished with hooks or spikes to prevent its slipping. Held that, since it was reasonably safe and suitable for the purposes for which it was intended, defendant was not required to supply it with hooks or spikes, in order to relieve itself from liability, and that plaintiff could not recover.
    Appeal from special term.
    Action by Joseph M. D’Arcy against the Long Island Railroad Company. From a judgment in favor of defendant, dismissing plaintiff’s complaint, he appeals.
    Affirmed.
    Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ..
    William F. Goldbeck, for appellant.
    William J. Kelly, for respondent.
   WOODWARD, J.

This was an action for personal injuries sustained by the plaintiff while employed in assisting to unload a car of the defendant railroad company. He was regtilarly employed as a helper on one of the defendant’s express wagons, but on the day of the accident he had completed his day’s work, and was, according to his testimony, waiting for orders, when he was called upon to assist in unloading a car which was standing at the station platform. Two other men were at the time engaged in the work of removing the freight, using ordinary hand trucks, and passing over an iron plate or plank in going to and from the car to the platform. Just as the plaintiff was about to commence his labors, he ■stepped upon this plank or iron plate, which fell to the ground between the platform and the car, carrying the plaintiff with it, and severely injuring his foot. The trial court dismissed the complaint upon the grounds that: “A plank is one of the commonest things-in the world, as we all know, and it is not customary to- fasten planks at the ends either. I cannot see any case here, and I dismiss the complaint.” The plaintiff excepted to this ruling of the court, and upon appeal urges that the iron plate was not a plank, but a bridge, and that it was the duty of the defendant to- have-made the bridge secure by means of some kind of a fastening, so-that it c.ould not fall. There was some evidence in the case that this plank or iron plate had fallen on two other occasions, but we are unable to see that this had any bearing upon the question. The master “is not bound to furnish the best known appliances, but only such as are reasonably fit and safe. He satisfies the requirements of the law if, in the selection of machinery and appliances, he uses that degree of care which a man of ordinary prudence would use, having regard to his own safety, if he were supplying them for his own personal use. It is culpable negligence which makes a master liable, not a mere error of judgment.” Harley v. Manufacturing Co., 142 N. Y. 31, 36 N. E. 813. This rule was considered and applied in the case of Marsh v. Chickering, 101 N. Y. 396, 5 N. E. 56, where the plaintiff sought to recover damages because of the fact that his employer had not furnished a ladder fitted with hooks and spikes, instead of an ordinary ladder, for the purpose of lighting lamps. After stating the general rule that the master is assumed to know the requirements for the work to be performed1 better than the servant, the court say:

“In cases, however, where persons are employed in the performance of ordinary labor, in which no machinery is used, and no materials furnished, the-use of which requires the exercise of great skill and care, it can scarcely be claimed that a defective instrument or tool furnished by the master, of which the employé has full knowledge and comprehension, can be regarded as-making out a case of liability within the rule laid down. A common laborer who uses agricultural implements while at work upon a farm or in a garden; or one who is employed in any service not requiring great skill and judgment, and who uses the ordinary tools employed in such work, to which he is accustomed, and in regard to which he has perfect knowledge, can hardly be said to have a claim against his employer for negligence, if, in using an utensil which he knows to be defective, he is accidentally injured.”

In the case at bar there is no suggestion that the plank was defective in the sense that it was not strong enough, or wide enough, or long enough, for the purpose for which it was used, but simply because it was not supplied with hooks or other fastenings which would make it impossible for the plank to slip from its place.- As was said in the case of Marsh v. Chickering, supra:

“It might, perhaps, have been more perfect if it had had hooks and spikes, but this improvement was not absolutely essential to relieve the defendants from liability. It was enough that it was reasonably safe and suitable within the rule cited, and under such circumstances an action will not lie.”

The judgment of the trial court should be affirmed, with costs,. All concur; GOODRICH, P. J., in result.  