Huber v. Whale Creek Iron Works — 125 A.D. 184

Majority

p. 184

John F. Huber, Respondent, v. Whale Creek Iron Works, Appellant.

Second Department,

March 11, 1908.

Headnote

Negligence — injury by defective emery wheel—safe appliances—act of foreman in choosing appliances.

Where, in an action by a servant to recover for injuries caused by the leather belt covering the wooden core of an emery wheel flying off because of defective construction, it appears that the employee was directed to use the wheel by the foreman and there is evidence justifying a finding that the wheel used was the only one available of the requisite dimensions, it is for the jury to say whether the master had furnished reasonably safe machinery and appliances Where a foreman directs a servant to use the only appliances available for certain work the master is liable for an injury resulting from a defect in its construction, if the defect was not such as to be obviously dangerous.

The duty of a master to furnish proper machinery and appliances may not be delegated.

Appeal by the defendant, the Whale Creek Iron Works, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of March, 1907, upon the verdicL of a jury for $1,500, and also from an order bearing date the 21st day of March, 1907, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Joab H. Banton, for the appellant.

Don R. Almy, for the respondent.

The plaintiff was injured while operating an emery wheel used for polishing iron castings in defendant’s plant. The plaintiff’s version is that he was set to work upon the polishing machine by the defendant’s foreman; that the latter took down the wheel, consisting of a wooden core surrounded by a leather belt or strip, on which glue and emery dust was placed from time to time, and placed it upon the machine and directed the plaintiff, a green hand, in the method of using the machine, which had just been installed, and then went away and left him; that almost immediately thereafter the leather belt surrounding the wheel broke loose, owing to a defect in the method of its construction, and hit the plaintiff in the head and in various parts of his body, working the injuries for which he has recovered in the court below. The plaintiff testifies that he noticed the wheel when it was given to him to use, and that it had a “ belly ” on it, owing to the defective fastening of the leather belt; that he called the foreman’s attention to this defect but was assured that it was all right, and that, going ahead with the work, he was injured in the manner detailed in the evidence. While there was some evidence that there were other wheels which might have been used, there was evidence, we think, which justified the jury in finding that this was the only wheel of the dimensions required which was available for usé upon this machine, and so there was a question for the jury as to whether the defendant had furnished reasonably safe machinery and appliances, and there was evidence from which the jury might draw the conclusion that the defendant had been remiss in its duty.

The defendant’s theory was that the plaintiff had requested to be taught the use of the machine, and that he was at the time of the accident merely a pupil, at his own request, but the evidence does not compel this conclusion. On the contrary, there is evidence to support the plaintiff’s version given above, so that it is unnecessary to determine what might have been the duty to the plaintiff under the later version of the accident.

It being the master’s duty to supply proper machinery and appliances, that dnty cannot be delegated in such a manner as to relieve the master of the duty. Of course, if there had been other wheels of a proper make and in fit condition, and the foreman

p. 186

had merely erred in judgment in the selection of this particular wheel, the accident would have been due to the fault of a fellow-servant. But if this was the only wheel available for this use, and the defendant’s foreman directed the plaintiff to use it, and the defect was not such as to be obviously dangerous, there was a failure of duty ou the part of the master, for which the defendant is liable. The evidence, we believe, supports this view of the case, and we find no reversible error in the record.

The judgment and order appealed from should be affirmed, with costs.

Present — Woodward, Jenks, Hooker, Gaynor and Bioh, JJ.

Judgment and order unanimously affirmed, with costs.