
    Andrew Olsen, Appellant, v. John H. Starin, Respondent.
    
      Negligence in unloading a vessel—injury from the breaking of a hook holding cc-pulley block — duty of the owner of the shipyard to provide-a proper hook—contributory negligence — negligence of a fellow-servant.
    
    In an action brought to recover damages for personal injuries, it appeared-that a. bark loaded with lumber consigned to the defendant was being unloaded in the defendant’s shipyard, the lumber being hauled through a port in the bark, by a rope, the power for which was supplied by a steam winch in the defendant’s yard; that the rope did not lead “directly from the-winch to the vessel, its direction being changed by its passing through a pulley attached to an iron, hook fastened in the wharf; that during the unloading a draft of lumber became wedged on the vessel, and the winch not being stopped in time, the iron hook on the wharf to which the pulley was fastened straightened out, and the, plaintiff, an employee of the defendant, who was engaged in piling thelumher within the hend of the rope, was struck hy the block as it was drawn inward and received the injuries complained of. The work on the vessel was-carried on hy an independent contractor, and it was contended that the winghman, although an employee of the defendant, was at the time of the accident ' in the service of such contractor.
    
      Held, that the. question of "the plaintiff’s contributory negligence in occupying the position which he did, ¡is to the necessity of which there was a conflict of' evidence, was one for the consideration of the-.jury;
    That, assuming the winchman to have been in the employ of "the - defendant, the latter would not be liable for Ms negligence as such negligence would-be that of a fellow-servant;
    That the hook fastened in the wharf must he considered an appliance furnished, by the defendant in the conduct of his business, and that he-owed a, duty to his-employees to exercise reasonable care in maintaining it in a proper condition.
    What evidence as to the condition of the hook previous to the accident was--insufficient to require the question of the defendant’s negligence to he submitted to the jury, considered.
    Appeal by the plaintiff, Andrew Olsen, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 30th day of March,. 1899, upon the dismissal of the complaint by direction of the court-after a trial before the court and a jury at the Richmond Trial Term, and also-from an order entered in said clerk’s office on the 28th day of March, 1899, denying the plaintiff’s motion to set aside the direction -dismissing the complaint and for a new trial.
    
      
      Gilbert D. Lamb, for the appellant.
    
      Everett P. Wheeler [John S. Woodruff with him on the brief], for the respondent.
   Cullen, J.:

The action is to recover damages for personal injuries alleged to have been inflicted by the negligence of the defendant, in whose employ .the plaintiff was at the time. The defendant maintained a shipyard. A bark lay at a pier in the yard, loaded with lumber, consigned and to be delivered to the defendant. The following was .the method of unloading the vessel : The lumber was hauled through a port or opening in the bark by a rope or tackle, the power being supplied by a steam winch in defendant’s yard. The line did not lead in a straight course from the vessel to the winch, but to change its direction it was passed through a pulley or block attached to an iron hook fastened in the wharf, and then from the pulley to the winch; therefore, at the place where the pulley and hook were located, there was a bend in the line. The plaintiff was employed in .piling the lumber after it was removed from the vessel, in the space lying in the bight or bend of the line. The work on the vessel was being carried on by a stevedore, who seems to have been an independent contractor. The man at the winch was an employee of the defendant, though it is .claimed, that, on' this occasion, he was in the service of the stevedore. The work had been carried on for some time, when a draft of lumber became “ jammed ” or wedged on the vessel; the winch not being stopped in time, the iron hook on- the wharf to which the pulley was fastened straightened out, and the block and ropes were drawn inward. The plaintiff was struck by the block, and received severe injuries.

The question of the plaintiff’s contributory negligence in occupying the position within the bight of the line, was clearly one for the jury. No doubt the place involved danger in case any of the appliances should fail or the rope break. The defendant’s foreman testified that he warned the plaintiff' not to occupy this position when the draft was being hauled out of the ship. This statement, however, the • plaintiff denied^ and testified that it was necessary for him to remain within the bight of • the line, to do his. work. The conflict of evidence presented a question for the jury.

On the question of the defendant’s negligence, it is immaterial whether the winchman was in the defendant’s employ or, in that of the stevedore. If the latter, of course the defendant would not be liable for his negligence; if the former, his negligence would be that of' a fellow-servant, for which the master Would not be responsible. On this branch of the case the question is narrowed. down to the defective condition of the hook.. We think that this hook must be considered as an appliance furnished by the defendant in the conduct of,his business, for.reasonable care in maintaining' the .security of which he was responsible to his employees. The only evidence to show that there was anything defective in the hook is that of a fellow-workman of the plaintiff, who was engaged with him in piling the lumber. This witness testified that, after the accident, he looked at the hook as it lay on the wharf, and “there, was an old spot in one side of it, and it looks like an old crack,, but I can’t say for sure, but it looks like an old crack. ' There was an old spot on one side of it. This old spot looked like an old crack. It was across the grain. I never measured the'crack. This crack was, in my judgment, about half an inch deep.” On cross-examination it appeared that the witness did not handle the hook or examine it, and that his face or eyes were not, at any time, closer to it .than five feet. He also reduced the., depth of the crack toa quarter of an inch. -It appeared by the testimony of three witnesses, also émployees- of the defendant, who examined the hook, that after it had straightened out there appeared a Crack of from a quarter to a half inch in depth, which -was bright, clean, and fresh. The hook had been.for some time in. use, and two days before the accident had been returned to the blacksmith’s shop to be closed up. There the hook was heated and bent; The blacksmith testified that the material was ’the best, and the hook, at the time he finished his work on it, was without flaw or fault. As these witnesses were in -the defendant’s employ, their Statements were not necessarily conclusive upon the jury. We also appreciate the rule, which this court has so strenuously insisted upon, that where there is.a real conflict of evidence a case must be submitted to the jury, and the fact that the testimony on one side vastly qireponderates does not justify the court in disposing of the case itself. (Luhrs v. Brooklyn Heights R. R. Co., 13 App. Div. 126.)

But the burden proof was on the plaintiff to show affirmatively the defect in the hook as one step in establishing the defendant’s negligence. The only testimony to make out this fact is that first quoted, and the question is whether it is sufficient for the purpose. We think it is not. The witness does not positively testify that the ’ -crack was an old one, though this we do not regard as of controlling importance. But it is plain that the judgment or testimony of a person as,to the appearance of a crack from a quarter to a half inch in depth, submitted to no close inspection and seen at no time ■at a less distance than five feet, has no substantial weight. Such proof constitutes at most only a scintilla of evidence, and does not satisfy the -burden which the law imposed on the plaintiff. The ■case would be very much stronger for the plaintiff had the hook broken in the ordinary work of unloading the vessel. At the time -of the accident, the draft having become wedged on the vessel, if the power of the winch was great enough something must have broken or given way. . It became a question whether the hook, the block or the rope should first break. The question was solved in this case by the breaking of the hook. From the failure of an ■appliance under these circumstances no such presumption as to its insufficiency or defective condition can be indulged in, as in a case where the appliance fails in the ordinary conduct of the work.' Here the hook had served its purpose for a day and a half, and had tailed only when the extraordinary strain was put upon it. On the whole we are of opinion that .the evidence was not sufficient to justify the submission of, the case to the jury, and that the decision of the learned trial judge was" correct.

The judgment appealed from should be affirmed, with costs.

Goodrich, P. J., not sitting.

Judgment and order unanimously affirmed, with costs..  