Opinion
November Term, 1896.
James E. Kelly, for the appellant.
Herbert C. Smyth, for the respondent.
This action was brought to recover damages for injuries alleged to have been sustained by the plaintiff through the defective construction of a certain eyebolt, which defective construction caused the bolt to break. The plaintiff was employed by the defendant as a lineman in the construction of an electric railroad on Baronne street in the city of New Orleans, and was injured while helping to string a feed wire over a certain span wire which connected two poles across the street. This span wire was fastened to the eyebolt at the top of each pole, and it was drawn tight so that the tops of the poles were drawn toward each other. The plaintiff had his left foot on the top round of the ladder, and his right leg around the pole. He had hold of the feed wire and was just laying the feed wire in a wire hook that was hung over the span wire. As the weight of this feed wire rested in the wire hook, the eyebolt broke; the tension being removed, the pole flew back, and the plaintiff was thrown to the ground. The eyebolt was welded and it parted at the weld. A good eyebolt of the size of the one which broke ought to hold 2,000 pounds.
It appeared from the evidence that this bolt was not manufactured by the defendant, but was bought by him of reputable manufacturers, and to all outward appearances was entirely suited for the purpose to which it was put.
Upon the foregoing facts appearing, the learned justice dismissed the complaint, and from the judgment thereupon entered this appeal is taken. A motion for a new trial was made and the learned court below wrote a careful opinion in denying the motion; and we might rest this decision entirely upon that opinion were it not for the claim made upon the part of the appellant, that there was no proof that the defendant ordered the eyebolt from responsible and well-known manufacturers, as was assumed by the court below; and that the defendant having offered proof, the trial judge had no right to pass upon the truthfulness of this proof nor upon the conflict arising on the evidence, but that this was for the jury.
It is also urged that the court erred in the exclusion of testimony.
Upon an examination of the evidence in the case we think that the learned judge was entirely correct in holding that the evidence showed that the eyebolts in question were bought from a responsible manufacturer who had a good reputation. It is true that one of the witnesses who was called to prove these facts was at first unable to remember the name of the corporation which had manufactured the bolts; but upon being shown the bill for the eyebolts which had been paid by him, he stated the name of the corporation, which corresponded with the description previously given by him in his testimony, and his evidence was to the effect that the reputation of these manufacturers was of the best. Another witness, who was the treasurer of the manufacturer, was also examined and testified to the same effect, and there was no evidence whatever offered to the contrary. There was, therefore, no conflict of evidence and nothing in the case from which the jury could find that the bolt in question had not been purchased from a reputable manufacturer; and it appearing that the defect in the bolt was one which could not be detected upon an external examination, the defendant was shown to have done all that the rules of law required him to do, as appears in the opinion of the learned court below. There was, therefore, no assumption upon this subject in the opinion of the court which was not fully borne out by the evidence.
But it is urged that the court erred in excluding the following question: "Q. Did any of these ring bolts break the day or a day or two previous to this accident?" This was objected to, the objection sustained and an exception taken by the plaintiff's counsel. Then the question was asked: "Q. Previous to that?" Same objection, ruling and exception.
It is clear that the question first excluded was entirely incompetent, because the breaking of a similar bolt upon the day of the happening of the accident did not tend to prove that the defendant had notice prior to the accident that the bolts were defective. The next question is not subject to this criticism, because it refers to a time previous to the happening of the accident. But the difficulty with this question was that there was nothing to show that there was any intent to prove the breaking of more than one of these eyebolts. There was no claim made by the counsel that he intended to prove the circumstances under which the breaking occurred, or that it was of such a character as to call the attention of the defendant to any defect in the eyebolts. If the counsel intended to offer further proof so as to make this question material by reason of circumstances attending the breaking, or by the fact that breakages were of so frequent occurrence as to indicate weakness in the bolts, he should have so informed the court, so that the court might have understood what was claimed by the counsel to be the pertinency of the evidence. The breaking of one eyebolt was not evidence of the character of the lot, it appearing from the facts testified to upon the trial that the weakness resulted from an imperfect welding which could not be detected by examination, and which was not a defect of manufacture which would necessarily or probably run through the lot of eyebolts bought. We do not think, therefore, that the court was bound to know that there would be any attempt upon the part of the plaintiff by additional proof to make evidence of this character pertinent.
Under all the circumstances of the case we do not see that any error was committed; and for the reason stated in the opinion of the court below, as well as those here given, we think the judgment should be affirmed, with costs.
The following is the opinion of the trial court referred to:
McADAM, J.:
The action is to recover $50,000 damages for injuries sustained by the plaintiff, a lineman, while in the employ of the defendant, a trolley road contractor, on January 10, 1893. It appears that the plaintiff was working at the top of an iron pole erected by the defendant in Baronne street, New Orleans. While in that position, at a height of about twenty feet from the sidewalk, an eyebolt, which held a wire that spanned the street, broke, causing a jarring of the pole, which threw the plaintiff to the sidewalk, and inflicted the injuries complained of. It also appeared that the eyebolt was not manufactured by the defendant, but was purchased, with others, by him, through A. Baldwin Co., from the New Orleans Agricultural Works, a corporation which manufactured them; that these concerns were well known and responsible, and the defendant had every reason to believe that the bolts were well made. No fault is attributed to the eyebolts, except that the particular one in question was welded, and the break was ascribed to the welding. The plaintiff's principal witness testified that there was nothing in the eyebolt to indicate that it was weak. The bolt was put in the pole by a fellow-servant of the plaintiff engaged in the same occupation. At the conclusion of the trial, defendant's counsel moved to dismiss the complaint on the ground that there was no evidence of negligence on the part of the defendant, and that he was not responsible for any neglect of the plaintiff's fellow-workman. The motion was granted. The plaintiff claims that this was error, and moves for a new trial.
Upon entering the defendant's employ, the plaintiff must be treated as having taken upon himself all the risks ordinarily attending the business, and among these risks are those incident to the careless or wrongful acts of co-servants. (Wood's Law of Mast. Serv. [2d ed.] § 427; Keenan v. N.Y., L.E. W.R. Co., 145 N.Y. 190; 39 N.E. Rep. 711.) This rule is elementary. In order to hold the defendant, the plaintiff was bound to establish that the master omitted some duty owing to him, in consequence of which neglect or breach, and as its proximate cause, the plaintiff suffered injury. The source of the damage was a defective eyebolt, not deficient in size or material, but said to be dangerous on account of its being improperly welded, which defect was not apparent to ordinary observation. The eyebolt was put in the pole by the plaintiff's fellow-workman, and if there was any negligent act in putting it in place, it was that of the co-servant. A master is not bound to furnish the best-known or conceivable appliances. He is required to furnish such as are reasonably safe. ( Burke v. Witherbee, 98 N.Y. 562; Probst v. Delamater, 100 id. 266; 3 N.E. Rep. 184; Sisco v. L. H. Railway Co., 145 N.Y. 296; 39 N.E. Rep. 958.) The test is not whether the master omitted to do something he could have done, but whether, in selecting tools and machinery for their use, he was reasonably prudent and careful. ( Stringham v. Hilton, 111 N.Y. 188; S.C., sub nom. Stringham v. Stewart, 18 N.E. Rep. 870; Harley v. Buffalo Car Manufacturing Co., 142 N.Y. 31; 36 N.E. Rep. 813.)
If the defendant had manufactured the eyebolt, that circumstance might carry with it an implication that he knew, or ought to have known, it was welded, and how it was constructed. But he ordered it from responsible and well-known manufacturers, and had the right to assume that it was properly made. Having acted as an ordinarily prudent man would under similar circumstances, he cannot be held to have been negligent.
Judge Cooley, in his work on Torts (2d ed. p. 657), says: "The law does not require him (the master) to guaranty the prudence, skill or fidelity of those from whom he obtains his tools or machinery, or the strength or fitness of the materials they make use of. If he employs reasonable care and prudence in selecting or ordering what he requires in his business, such as every prudent man is expected to employ in providing himself with the conveniences of his occupation, that is all that can be required of him."
It was held in Carlson v. Phœnix Bridge Co. ( 132 N.Y. 277, 278; 30 N.E. Rep. 750) that " Hegeman's Case ( 13 N.Y. 9) 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 of the master's liability, and 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 in regard to his own safety, use in supplying similar things for himself were he doing the work."
Illustrations are given, concluding with the general result that a person in the position of the defendant must to a large extent rely upon the dealer and manufacturer for the quality of materials used, and is not usually liable for imperfections not observable on inspection.
In Nelson v. Dubois (11 Daly, 127), where the plaintiff recovered damages sustained by reason of the breaking of a rope on a pile-driver, the court, in reversing the judgment, said: "There is no evidence in the case tending in the least to show knowledge in the master of whatever may have been the condition of the rope, or of its being in a dangerous state under circumstances charging him with knowledge. It rests upon the plaintiff to establish this, and, he having failed to furnish any proof warranting such a conclusion, the motion to dismiss the complaint should have prevailed." (See, also, Cregan v. Marston, 126 N.Y. 568; S.C., sub nom. Creegan v. Marston, 27 N.E. Rep. 952; Kunz v. Stuart, 1 Daly, 431.)
In Painton v. Northern Cent. Railway Co. ( 83 N.Y. 7) a brakeman in defendant's employ was injured by the breaking of an eyebolt connecting the chain with the rod of a brake. He sought to recover damages, and it appeared that the eyebolt was defective in not having been properly welded. There was no evidence of notice to defendant or any of its agents, nor was it shown that the defect could have been discovered by inspection. While a recovery was sustained by the Court of Appeals upon other grounds, the court held it could not be sustained so far as it rested upon the imperfection referred to. (See, also, Flood v. Western Union Telegraph Co., 131 N.Y. 603; 30 N.E. Rep. 196.) But, as it did not appear whether the defendant made the defective eyebolt or purchased it, and it was affirmatively proved that the bolt was too small, they held that this was a defect of which the defendant was bound to take notice, and the jury should say whether it was sufficient to sustain the charge of negligence. Upon this last feature of the case particularly the finding by the jury in favor of the plaintiff was ultimately affirmed. There was no such allegation or proof in this case, and the fact that the defendant did not make the eyebolt affirmatively appeared. The features which made the Painton action a proper one for submission to the jury are absent here.
Every negligence case has so many peculiarities of its own that the application of adjudicated cases, except as to general principles, is matter of extreme difficulty. The process of discrimination and distinction will continue as often as the kaleidoscope of accident changes the facts and shifts responsibility.
Upon the proofs presented the nonsuit was properly directed ( Linkhauf v. Lombard, 137 N.Y. 426; S.C., sub nom. Leinkauf v. Lombard, 33 N.E. Rep. 472; Hemmens v. Nelson, 138 N.Y. 517; 34 N.E. Rep. 342), and the motion for a new trial must be denied.
WILLIAM, PATTERSON and INGRAHAM, JJ., concurred; O'BRIEN, J., dissented.
I think the rulings excluding evidence of the breaking of eyebolts previous to the accident was error. The plaintiff was met at the very outset of his attempt to prove previous breakings by an objection which was sustained, and he was not obliged to go further to strengthen his exception to the ruling. ( Painton v. North. Cent. Ry. Co., 83 N.Y. 7.)
Judgment affirmed, with costs.