Opinion
November Term, 1901.
Judgment and order affirmed, with costs, upon the opinion of Smith, J., denying motion for new trial. — Bartlett, Woodward, Hirschberg and Jenks, JJ, concurred; Goodrich, P.J., dissented.
The following is the opinion of Justice Wilmot M. Smith, delivered at the Kings County Trial Term:
I do not think the selection of proper guys was a detail of the plaintiff's work. He had no part in the selection; he exercised no discretion whatever; he was obliged to rely entirely upon the judgment of Fortuna, the foreman to whom this duty was delegated by the defendant. I am also of the opinion that this case is distinguishable from the case of Cregan v. Marston ( 126 N.Y. 568). The guy in this case was made of wire; there is no evidence that under ordinary circumstances any necessity existed that it be frequently changed. There is no evidence that any of the workmen knew that there was a time limit of safety for its use; there is no evidence that any of the workmen could determine by observation when the limit of safety for any cause had been reached; there is no evidence that any of the workmen could give notice and get a new guy or that they had ever done so. So far as it appears by the evidence, the defendant confided to his foreman the sole right and duty, not only of selecting in the first instance a suitable guy, but of determining when it should be replaced. The accident in this case was undoubtedly caused by the negligence of the foreman in failing to replace a guy with a new guy, after it had been subjected to undue strain and broken, of all which the plaintiff had not the slightest notice. The duty of furnishing proper appliances for the use of the servant and of exercising reasonable care and prudence to protect the servant from avoidable injury is a duty of the master and cannot be delegated. In this case the duty was confided to the foreman, and his negligence in the performance thereof was not the negligence of a fellow-servant, but is imputable to the master. Motion for a new trial denied and an extra allowance of five per cent upon the recovery granted.