Marion v. B. G. Coon Const. Co.

before the load line was lowered, attempted to do so'by operating a foot brake. In attempting to do this, either because he released the brake too much, or for some other reason which the engineer does not very well explain, the boom got away from him, the cable all ran off the drum, and the boom fell upon the plaintiff and injured him.

The plaintiff alleged, and gave evidence ténding to support, four separate specifications of negligence—four separate grounds of liability: (1) That there was no pin fastening the boom to the derrick; (2) that there were not enough wraps of the cable around the drum to hold the cable from slipping; (3) that the cable was not properly fastened to the drum; (4) the hiring of a youthful,.unskillful, inexperienced, incompetent engineer.

[1,2] The first three, being defects, in the machinery, are allegations available under the statute, as well as under the common law; the fourth allegation does not come within the statute. All four of these allegations, however, state grounds for a cause of action under •the common law.

[3,4] At folio 732, the court, in response to defendant’s motion to ■compel the plaintiff to elect in going to the jury between the common-law count and the Labor Law count, said:

This ruling seems" to have been equivalent to a nonsuit of the al7 leged cause of action under the common law. If so, it was erroneous ; for, as we.have seen, each of the four allegations of negligence was •available to the plaintiff under the common law. If it was particularly directed against the allegation that the defendant was negligent because it had hired an incompetent engineer, the ruling was also erroneous; for the proof presented facts for the consideration of the jury under that common-law allegation. The court later on, however, ignored this ruling apparently, and in his charge submitted the case to the jury on the question of whether the defendant was negligent in hiring Davis, an alleged unskillful, inexperienced, incompetent man. If this court considers that the previous ruling may be thus cured— that is, cured in effect without a formal revocation—then the cure was in fact effected; for the charge proceeded as though the common-law •count as to the engineer was yet intact. I think it should be held that the error.was cured, for two reasons: First, because I doubt that the .court intended his ruling to amount to a nonsuit; second, because, if he did, it having been subsequently rectified by his charge to the jury, we should treat his failure to formally change his ruling as a technical, rather than a substantial, omission, and ignore it under section 1317 -of the Code.

[5] Under the statute the failure to furnish safe machinery is negligence; under the common law the failure to hire a competent engineer is negligence. If the plaintiff proves them both as contributing reasons for the accident, assuming, of course, his freedom from contributory negligence, that gives him a cause of action—one cause of .action. Payne v. N. Y., S. & W. R. R. Co., 201 N. Y. 436 , 95 N.

he was entitled to have both grounds submitted to the jury,' for they might believe the one and reject the other. They might reject the contention of defective appliances, think it not proven, and adopt the assertion of negligence in hiring an incompetent engineer, think it well established by the evidence. Any ground of negligence which was presented to the court by the pleadings and the proof, whether under the common law or the statute law, should have been submitted to the jury. This point, therefore, the one most vigorously urged by the defendant, that the question of the negligence of the defendant, so far as it relates to the hiring of the engineer, should not have been submitted to the jury, is not well taken, and should be resolved in favor of the plaintiff.

It is strongly urged that the negligence of Davis, a fellow servant, in operating the engine, was the proximate cause, and indeed the only cause, of this accident. If his negligence was the cause, then the-plaintiff cannot recover; but 'whether the accident was caused by a •defect in the machinery of the defendant (the alleged short- cable, insufficient number of wraps, failure to pin fast the boom), or by the ■negligence of Davis, was an issue of fact for the jury to determine. The evidence is sufficient to support their verdict on this question, and there is no occasion to interfere with it.

[6-8] Another point urged by the appellant—the one concerning the X-ray pictures—and which seemed to attract considerable attention from the court at the time of the argument, will upon examination, I believe, be found to be without merit. A careful reading of all the medical evidence, and the other evidence as to injuries, will show that the plaintiff was substantially injured. One of the plaintiff’s witnesses, Dr. Gardner, swears:

‘“I was present when the [X-ray] pictures were taken, saw them taken, saw them developed, and looked at the plates immediately after they were developed.”

Thus their identity and correctness were established. Then the •doctor proceeds to tell what the pictures show. Another physician, Dr. Tinker, also tells what he thinks the plates show. There was no demand made by the defendant for the production of the plates; no "hint or suggestion that they were desired. They were in fact in court, so the plaintiff states in his brief. I can see no error at all in this X-ray incident. The evidence shows that nobody but an X-ray expert could tell anything from the plates, and that if they had been produced they would have done the court, jury, or the defendant’s ordinary physicians no good. I do not think that the doctrine that an ordinary photograph is the best evidence of what it contains should be applied to X-ray pictures. They constitute an exception to the rule •concerning ordinary documents and photographs, for the X-ray pictures are not, in fact, the best evidence to laymen of what they contain. Generally they are no evidence at all, signifying nothing whatever, except to the expert. The opinion of the expert is the best evidence of what they contain—the only evidence. If there had been a demand for these pictures in court, or a request that they be submitted to the inspection of the opposing experts, and these rights had

been denied the defendant, such an error would be serious. But whatever harm befell the defendant, if there was any harm at all, came to it by reason of its own failure to demand what it was entitled to, and what it would unquestionably have received by the mere asking. To sustain this contention of the defendant would be to tolerate worse than a technicality—a trick.

[9,10] The plaintiff should not be permitted to avail himself of section 18 of the Labor Law (Consol. Laws 1909, c. 31), or recover upon that theory, first, because the law is not applicable to the facts proven, and also because the case was not tried or submitted to the jury upon the assumption that it came within the provisions of that section. Hammond v. Union Bag & Paper Co., 136 App. Div. 100 , 120 N. Y. Supp. 652 ; Mulligan v. McDonald, 135 App. Div. 536 , . 120 N. Y. Supp. 522 .

The judgment and order should be affirmed, with costs. All concur, LYON, J., in result, except SMITH, P. J., who dissents.