Statement of case.

CHARLES F. CARLSON, Appellant, . THE PHOENIX BRIDGE
COMPANY, Respondent.

Reasonable care, and not the highest efficiency which skill and foresight
can produce is the measure of a master's liability to his servant; he
performs his whole duty by using as much care in the selection of
materials for the use of his servants as a man of ordinary prudence in
the same line of business would, acting with regard to his own safety,
use in supplying similar things for himself, were he doing the work.
If material of the best quality is purchased by the master, and there is
nothing in its appearance to indicate inefficiency, and tools, for the use
of the servant, are constructed therefrom by competent and skilled work-
men, the master discharges his duty, and is not liable for an injury to
the servant, caused by a breaking of the tool in consequence of a hidden
defect in the material.

In an action by an employe of defendant to recover damages for personal
injuries alleged to have been caused by defendant's negligence, the fol-
lowing facts appeared: Plaintiff, while in the performance of his duties,
was injured by the fall of an iron girder caused by the breaking of an
iron hook used in raising the girder. The hook was one of a number
made for defendant for such use from a bar of iron purchased by defend-
ant of reputable dealers, and ordered as the "best refined" iron, which
was the best grade in the market. All of the other hooks had been
used for the same work, and none proved to be weak or insufficient,
except the one in question, and this one, during the three months prior
to the accident, had been used in lifting girders similar to the one which
fell. There was nothing in its external appearance to indicate that it
was weak, or not of the best material. The break resulted from a
hidden defect in the iron, that could not have been discovered by an
external examination, and was not discovered in the process of making
the hook, which, when delivered to defendant's employes for use, was
supposed to be of the best material. Held, that plaintiff was not entitled
to recover.

Hegeman v. Western R. R. Co. (13 N. Y. 1), distinguished.
Reported below, 55 Hun, 485.

(Argued March 9, 1892; decided March 25, 1892.)

APPEAL from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an order made May 12, 1890, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at Circuit.

132 273 142 34

132 273

164 496

Statement of case.

The nature of the action and the facts, so far as material, are stated in the opinion.

J. Edward Swanstrom for appellant. Upon an appeal from a judgment dismissing the complaint, the evidence is to be construed most favorably to the plaintiff. (Harris v. Perry, 89 N. Y. 308; Clemence v. City of Auburn, 66 id. 338.) The defendant was guilty of negligence in failing to use proper care to provide a safe and suitable hook for the work which the plaintiff was called upon to perform. (McGovern v. C. V. R. R. Co., 123 N. Y. 287; Pantzar v. T. F. I. M. Co., 99 id. 368.) The negligence of the defendant's blacksmith arose in the performance of a duty belonging to the defendant to perform as master, hence the defendant is liable for the manner of its performance. (Bushby v. N. Y., L. E. & W. R. R. Co., 107 N. Y. 379; Mann v. D. & II. C. Co., 91 id. 495; Durkin v. Sharp, 88 id. 227; Fuller v. Jewett, 80 id. 46; Booth v. B. & A. R. R. Co., 73 id. 38; Pantzar v. T. F. I. M. Co., 99 id. 368; Leonard v. Collins, 70 id. 90.) The General Term erred in holding that the defendant was not required to adopt any precaution in making the hook so long, as the best iron was purchased for the purpose. (McGovern v. C. V. R. R. Co., 123 N. Y. 289.) The General Term erred in holding that the testimony of defendant's superintendant, that he purchased the best iron is controlling. (C. N. Bank v. Diefendorf, 123 N. Y. 200; Elwood v. W. U. T. Co., 45 id. 49; Kavanagh v. Wilson, 70 id. 172; Gildersleeve v. Landon, 73 id. 609; Koehler v. Adler, 78 id. 201; Wohlfahrt v. Beckert, 92 id. 497.) The question of contributory negligence was, under all the circumstances, one of fact for the jury. (Stackus v. N. Y. C. R. R. Co., 79 N. Y. 464; Plank v. N. Y. C. R. R. Co., 60 id. 607; Bassett v. Fish, 75 id. 307; Kain v. Smith, 89 id. 379.) The plaintiff did not assume the risk of the accident by which he was injured. (Bening v. Steinway, 101 N. Y. 551; Stringham v. Stewart, 100 id. 526.)

A. B. Boardman for respondent. The inference of negli gence cannot fairly and properly be drawn against the defend

Opinion of the Court, per BROWN, J.

ant. (Burke v. Witherbee, 98 N. Y. 565.) The blacksmith's failure to cut the iron when it was cold was not, under the circumstances, negligence. (Probst v. Delamater, 100 N. Y. 266; W. R. Co. v. McDaniels, 107 U. S. 454; Wright v. N. Y. C. R. R. Co., 25 N. Y. 566; Baulec v. N. Y. & H. R. R. Co., 59 id. 366; Dwight v. G. L. Ins. Co., 103 id. 358.)

BROWN, J. The plaintiff was an employe of the defendant, engaged in the construction of an elevated railway in Fulton street, in the city of Brooklyn, and while in the performance of his duties was injured by the fall of a heavy iron girder and brought this action to recover damages sustained from such injury.

For the purpose of lifting the heavy girders from the street to the elevated position they were to occupy in the structure the defendant used a movable derrick operated by steam power. The hoisting apparatus included a chain and hook.

The plaintiff described the customary method of raising the girders as follows: The hook was fastened into the girders first so as to raise them on edge, and then enough power was applied to raise them clear of the street, so that they could be placed on blocks. After they were placed on blocks, under their proper position in the structure, other tackle was used, the hook and chain being dispensed with, and they were raised into their permanent position. The immediate cause of the accident which injured the plaintiff was the breaking of the hook when the girder was being raised from the street, and the negligence charged upon the defendant was its failure to furnish a hook strong enough to sustain the weight of the girder.

The hook in question was one of a number (testified to be eight or more) made for use in the work of building the railway, by a blacksmith in the defendant's employ. They were made about three months prior to the accident from a bar of iron twenty-four feet long and one and three-quarter inches in diameter, purchased by defendant from Manning, Maxwell & Moore, reputable dealers in iron, and ordered as the "best refined," which was the best grade of iron in the market. All

Opinion of the Court, per BROWN, J.

of the hooks had been used in raising similar heavy girders and none of them were shown to have been weak or insufficient for the work required of them.

The one in question had been used during the three months previous to the accident to lift about two hundred girders similar to the one which fell upon the plaintiff, and there was nothing in its external appearance to indicate that it was weak or that the material was not of the best quality.

After the accident the iron at the point of fracture was discovered to be bad. The break was square across the shank and presented a bright appearance, without rust, and the proof tended to the conclusion that it resulted from crystalization in the iron, which could not be discovered by an external examination. It was not discoverable in the process of making the hook, and when delivered to the employes for use it was supposed to be of the best material.

The appellant claims and, on the trial, gave evidence to the effect that a customary test to ascertain the quality of a bar of iron could have been made by the blacksmith by nicking or cutting notches in the bar when cold with a chisel or cutter and then breaking it, or by bending it over an anvil. That if broken, the grain of the iron would have been disclosed, and by bending it, if crystalized, it would break, but if fibrous, it would bend. But it was conceded that such a test could not be applied to the particular piece of iron which was used in making the hook without either destroying it or greatly impairing its strength and efficiency. These tests were not applied to any part of the bar in question.

It appeared from uncontradicted testimony introduced by the defendant that all refined iron is subjected to frequent tests during the process of manufacture, and represents in the market the highest efficiency of the manufacturer's skill, and that subsequent to the accident to the plaintiff a piece of the bar in question, reduced in diameter to one and one-half inches, was tested and shown to have a breaking strength of forty-six tons, or more than four times the weight of the girder by which plaintiff was injured.

Opinion of the Court, per BROWN, J.

This statement of the facts brings us to the point of difference between the parties at the trial.

The plaintiff claimed that the defendant was negligent in omitting to apply to the bar of iron from which the hook was 'made the test of cutting and breaking or bending, which he claimed would, had it been made, have disclosed the bad quality of the material.

The defendant contended (1) that it was justified so far as the quality of the iron was concerned, in relying upon the fact that it was sold in the market as the best refined by a reputable merchant, and (2) that the defect being a latent one and confined so far as the testimony shows to a very small part of the bar, the jury would not have been authorized to find that the tests aforesaid, if they had been made, would have disclosed the defect complained of.

car.

The rule contended for by the appellant has been applied in cases of injury to passengers. Hegeman v. Western Railroad Co. (13 N. Y. 1), was a case of the breaking of the axle of a The defect in the iron was latent and could not have been discovered by any external examination. This court held that the defendant was liable for any defect happening during the construction of the car and axle which could have been detected by the manufacturer, though it could not have been detected after they were completed.

But the contrary is held in Ingalls v. Bills (9 Metc. 1), which was a case of injury to a passenger in a stage-coach caused by the breaking of an iron axle from an internal defect not apparent by external inspection, and a judgment for the plaintiff was reversed, the court holding that the defendant was not liable when the accident arose from a hidden and internal defect not apparent to a careful examination and the exercise of a most vigilant oversight.

Hegeman's case presents an extreme application of the rule governing the liability of common carriers of passengers. But the rule applicable in cases of master and servant is more favorable to the master. Reasonable care and not the highest efficiency which skill and foresight can produce is the measure