p. 160John Doyle, Appellant, v. Atlantic Stevedoring Company, Respondent.Headnote
Master and servant—negligence — injury by breaking of link of chain — failure of master to anneal chain — evidence not justifying recovery.An employee cannot recover for personal injuries caused by the breaking" of a link of a chain owing to the internal crystallization of the metal, there being no defect in the material or process of original construction, upon the ground that his master was negligent in failing to have the chain annealed after six months’ continuous use, without proving the length of time the chain had been in actual use.
Appeal by the plaintiff, John Doyle, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 30th day of April, 1914, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case.
Action by an employee, a longshoreman, against his master, a stevedore, to recover damages for personal injuries caused by the breaking of a link of a chain used in lowering material into the hold of a vessel.
Bertrand L. Pettigrew, for the appellant.
John C. Robinson., for the respondent.
Plaintiff’s evidence went only to the indications which the broken link showed, namely, internal crystallization without any defect of material or in the process of original construction. The restorative remedy to anneal such hoisting chains after six months of constant use, as testified to, necessarily required proof of such a continued use before defendant could be charged with neglecting that precaution. Plaintiff had to show the facts, and all of them, from which an inference of the particular act of negligence could be drawn. (Egan v. Dry Dock, East Broadway & Battery R. R. Co., 12 App. Div. 556 , 564; De Graff v. N. Y. C. & H. R. R. R. Co., 76 N. Y. 125 ,
p. 161131.) The indications supplied by the break did not do this, because, on plaintiff’s own showing, such crystallization might take place in but four months. Without evidence of how long the chain had been used, plaintiff did not make out his case. Thus, in the authority relied on by appellant, the court were careful to say: “ There is no question of the right of the jury on this evidence to find that the chain in question had not been annealed within six months.”
(Ford v.
Eastern Bridge & Structural Co., 193 Mass. 89 , 91.) Likewise, where a rod had become crystallized by continued mechanical vibration, and the preventive measure of annealing was testified to, there was the established fact that this continued strain had gone on for two years before the accident.
(Moynihan v.
Hills Co., 146 Mass. 586 .)
The judgment of dismissal of the complaint is, therefore, affirmed, with costs.
Present—Jenks, P. J., Thomas, Carr, Stapleton and Putnam, JJ.
Judgment unanimously affirmed, with costs.