Majority
p. 972TEETSEL v. SIMMONS et al. (Supreme Court, General Term, Third Department. July 6, 1895.) Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
Headnote
Master and Servant—Defective Appliances—Improper Use,Where an appliance which is sufficient for the purpose for which it was intended is occasionally used by the workmen for another purpose, for which it is not sufficient, but such use is not in pursuance of any custom or by any authority of the master, a workman injured by such improper use cannot recover against the master. Putnam, J., dissenting, on the ground that there was a question for the jury.
Appeal from circuit court, "Ulster county.
Action by Isaac Teetsel against William H. Simmons and others, to recover damages for personal injuries caused by the breaking of a platform or switch board on which plaintiff stood while working a switch in order to switch the course of the ice which was being put in defendants’ ice house. Judgment was rendered in favor of plaintiff, and defendants appeal.
Reversed.
The part of the ice house in which the accident happened was divided into four rooms of nearly equal size (50 feet by 80 feet each) by partitions crossing at right angles. The four rooms were known as the “North Front” and “North Rear” and “South Front” and “South Rear,” respectively. James Dumetry was foreman of the north front and rear rooms, and William Kiersted of the south front and rear rooms. Each foreman had 21 men under him, divided about equally between the front and rear rooms, whose dufies were to store ice in their respective rooms. The ice was hoisted from the river by means of elevators, and from thence on runways into the ice house. The runways were swung parallel to and about 0 inches from the central partition dividing the north and south rooms, and thus parallel through the openings into the rear rooms about one-half their depth. Between the north and south front rooms was an opening, extending from the sill to the roof, 4 feet 2 inches wide. In this opening the plaintiff stood upon a platform 4 feet and 3 inches long, 10 inches wide, and 1 inch thick, supported by cleats fastened to the uprights. On either side of the plaintiff, and about 6 inches from his platform, were the runways. The duty of the plaintiff was to control the direction of the ice by raising or lowering the switch, which when raised would allow the ice to run down into the rear room, and when lowered diverted the ice by an apron runway down to the level of the ice in the front room. These runways were each 4 feet wide with slat bottoms, and as the filling of the house progressed these runways were hoisted about 5 feet at a time. Sixteen, cakes per minute passed down each runway. Immediately before the accident the block which controlled one of the switches gave way, the elevator was stopped, and work suspended. During this stoppage of the works, George Kiersted, a coservant employed in the room over which William Kiersted was foreman, jumped upon the runway, stepped on the platform upon which plaintiff was standing, which then broke, causing plaintiff’s fall and the injuries complained of. There was no evidence given of any defect in the board or platform.
P. & C. P. Cantine (Charles F. Cantine, of counsel), for appellants.
Brinnier & Newcomb (A. S. Newcomb, of counsel), for respondent.
It seems to me that the evidence in this case establishes that the switch board upon which the plaintiff was standing at the time of the accident was placed there to be used for the purposes of a switch board only, and not as a part of a passage
Dissent
p. 973
way for the workmen of one room or part of the ice house to the other; that its occasional use as a passageway by some of the workmen was not in pursuance of any custom, or by any authority of the defendants; that the board was reasonably sufficient for the purpose for which it was intended it should be used,—that is, as a switch board; that the accident happened by reason of the careless act of a fellow servant, while not in the performance of any duty necessary to be performed in the course of his employment. It follows from these conclusions that the judgment should be reversed.
Judgment reversed, and a new trial granted; costs to abide the event.
MAYHAM, P. J., concurs.
While not very clear about this case, it seems to me it was properly submitted to the jury. The admission of defendant Simmons, the statement of defendants’ witness Dumery, which tended to show that plaintiff was properly on the board, and other evidence in the case, I think, allowed the judge to submit the case to the jury.