Opinion
April 30, 1913.
James J. Mahoney [ M.J. Wright with him on the brief], for the appellant.
Frederick N. Van Zandt, for the respondent.
Present — JENKS, P.J., HIRSCHBERG, BURR, RICH and STAPLETON, JJ.
For a narrative of the casualty reference is made to the opinion upon the first appeal ( 142 App. Div. 554). The second trial produced additional evidence which must be considered upon this appeal. It is clearly established by the testimony of Plank that after one of the clips became loose and displaced, the entire cable pulled out of the clamp so that the bucket dropped on one side but the cable itself did not break. The proximate negligence of the defendant, if any, began at the time of the displacement of the clip. The testimony, particularly that of Bartholomew, the installing engineer, of Van Etten, defendant's superintendent, and of Gronbach, defendant's servant who was in charge of inspection and repairs, justified the conclusions that this particular cable was equipped with two clips and practically as of original installation; that two clips, adjusted in relation to one another, afforded greater security against the slipping of the cable than one clip; that two clips were placed upon this cable in order to prevent it from such slipping which had appeared in the cables of other plants of the defendant earlier installed with a clamp only, and that the cable when thus equipped with clips could not as a mechanical possibility slip. I think, then, that the jury could have concluded that the accident was due to the working of the machinery after the displacement of one clip. The continuance of work was the action of Plant, who the court charged, without exception, was the fellow-servant of the plaintiff. The plaintiff was injured within so brief a time after Plank discovered the displacement of the clip and had communicated that fact to Burns — estimated from forty minutes to an hour and a half — that the jury would not have been justified in finding any fault of diligence in inspection after the accident or in repair. There is no proof that Plank was authorized generally or specifically, much less ordered, to continue to work the machinery under such or similar conditions, and for aught that appears he did so without the knowledge, actual or imputable, of the defendant. If, then, the only negligence that could be determined was in the conduct of Plank in continuance of the work, such negligence is not that of the defendant. ( Lynch v. Bush Co., Limited, 89 App. Div. 286; affd., 180 N.Y. 547.) But the question remains whether the master, when notified of the defective condition of the machinery, should have done anything more than order inspection with an eye to the necessity of repair or restoration. Should the master have ordered the machinery stopped until after such inspection, and if necessary until after the proper repair or restoration in order to make the machinery normal, or should the master in any event have warned the plaintiff that his continuance at the work subjected him to a greater risk in that one of the clips, designed as security against the slipping of the cable, had become displaced? Labatt on Master and Servant, in section 112, says: "But it seems inequitable and unreasonable to declare that the servant should always be the one to suffer, simply because the employer has been reasonably prompt in taking the necessary steps for the repair of the defective instrumentality. The true rule, it is submitted, is that the duty of the master under these circumstances is not, as a matter of law, fully discharged, unless he at least sees that the servant is notified of the danger to which he will be exposed while the abnormal conditions to which that danger is owing are being rectified." (And see also § 240, note 3, and cases cited.) We said in Franck v. American Tartar Co. ( 91 App. Div. 571): "But in any event, it surely is not the law that when the master is apprised of a defective place, he is not liable if he continues to offer it to the servant provided an accident happens before he can, with due diligence, make the place safe. I know of no such interval of immunity." I think that these were questions for the determination of the jury.
I think that the court submitted properly to the jury the status of Burns, to whom Plank communicated the fact that the machinery was out of order, and (according to the testimony of Plank) the precise defect, and that the jury could have found that the notice given to Burns was sufficient to charge the defendant with notice of the temporary defect and the character thereof. There was no proof that the defendant, after notification of the dislodgment, did anything save to notify its inspectors. The plaintiff testifies that he did not observe the defect at all and that he was not warned in any way, but was permitted to continue in his work. This possible duty of the master was suggested by the learned court in its instructions.
I advise affirmance of the judgment, with costs.
Judgment unanimously affirmed, with costs.