Schwerdtfeger v. New York & Baltimore Transportation Co.

Majority

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Francis Schwerdtfeger as Adm'rx, Resp't, v. New York and Baltimore Transportation Company, App'lt.

(Supreme Court, General Term, First Department,

Filed June 18, 1887.)

Headnote

Master and servant—Duty of master to furnish suitable tools— Liability of master.

It is the duty of the master to furnish the servant with safe appliances for the performance of his duties, and the servant, in the absence of notice to the contrary, has a right to assume that the appliances furnished for his use are safe and suitable. Where the servant suffers injury in consequence of the defective appliances, the master is liable for the damages which he sustains. Following, O’Hálloran v. Bampton (7 ÍT. Y. State Rep., 327).

Appeal from a judgment entered on verdict and from order denying motion for new trial.

First. The defendant is a -Maryland corporation engaged in transporting freight by water and by vessels or barges between Baltimore and New York, having an office at pier No. 1 North River.

Second. In the month of August, 1885, the defendant was the owner of a certain boat or vessel, named the “Octarara,” plying between Baltimore and New York, of which John 0. Reynolds was master and Richard T, Gillingham, was mate.

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Third. There was attached to the mast of the Octarara, about thirty feet above the deck a cargo boom, which was used as a derrick, and was a portion of the ordinary equipment of the vessel, intended for loading and unloading cargo.

Fourth. Near the outer end of this cargo boom was an iron band, with an eye on the under side, in which eye was hooked an iron block or pulley, containing a single wheel, over which ran a chain. This chain terminated at one end with a hook, for the purpose of fastening to the articles to be unladen; and at the other end it was attached to a wooden block, through which ran a rope to be used for a purchase and which communicated with a drum, where the hoisting power was applied.

Fifth. The hook which attached the iron block to the eye on the boom, was of iron. The neck of this hook passed through a hole drilled through the iron band, which made the head of the iron block. This hook terminated below this iron band, in a head similar to a rivet, so that the block, or pulley, revolved on the neck of the hook, like a swivel.

Sixth. By continual use the head of the hook, below the band of this block, had become so worn away, that of the iron, which was originally an inch or more in thickness, only about one-eighth of an inch remained. The hook had not been renewed for two years. Hooks are likely to be worn, and if not properly inspected are likely to break. The head of the hook, or clinch below the band, grinds away as the block turns around. The captain spoke of the hook in question as “ this worn out hook.”

Seventh. This worn out condition of the head of the hook wás not discoverable to a person standing on the deck, but could easily be seen by a person going aloft and inspecting the apparatus.

Eighth. It was the duty of Mr. Richard T. Gillingham, the mate of the vessel, to inspect this apparatus, but he had not examined it since the vessel was overhauled in May, 1885, about three months before the accident, although it had been in continual use during said three months.

Ninth. This apparatus was permanently attached to the vessel. It was part of its equipment and went with it. Whoever loaded or unloaded the cargo was obliged to use it.

Tenth. The plaintiff’s intestate was a stevedore in the employ of the defendant. It was his duty to discharge the cargoes of its vessels with the apparatus furnished by defendant for his use.

Eleventh. On the fourteenth day of August, 1885, the Oc

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torara went to Wallabout Basin, Brooklyn, to discharge some iron castings for a gas house. The plaintiff’s intestate and some ’longshoremen went over with her from New York to do the work.

Twelfth. The plaintiff’s intestate and his men took the apparatus furnished by the defendant for that purpose, knowing nothing of the worn-out condition of the hook above which attached the iron block to the boom. They rove a single purchase, with the rope on deck, and hoisted out a piece of the castings weighing about 1,920 pounds. Having raised this to a sufficient height, they swung it with the boom to the side of the vessel, and were about to lower it upon the deck, when the fragment of iron by which the block hung to the worn-out hook broke away and stripped off. The head of the hook pulled through the hole in the band, and the iron block, chain, etc., leaving the remainder of the hook hanging in the eye on the boom above, fell to the deck, striking the plaintiff’s intestate in the head, and causing his death.

Thirteenth. Tim block was soon after attached to the boom, with chains and ropes, and the cargo discharged; but the worn-out hook, which showed how it was broken, was kept for a short time and then thrown overboard by the mate, whose negligence, in not performing the duty of inspection, was the cause of the accident. The New York agent of the defendant came and looked at the hook before the mate threw it overboard.

Fourteenth. The captain and mate testified that they advised the plaintiff’s intestate to rig a double purchase with the rope which they thought would be safer than a single one. But two of the defendant’s employees, who were standing by at the time, within hearing, contradicted the fact that any such conversation took place The evidence was also conflicting as to whether one purchase was safer than the other. The only difference claimed for one over the other was, that in hoisting it lessened the strain upon the hook in the iron block by about one-third. But at the time this accident happened, the article had been hoisted and was being swung off preparatory to lowering. ' Again, the evidence showed that, had the hook been in suitable condition for use, it would have sustained a much greater strain than was put upon it by the article lifted and the purchase used, for the greatest strain thus exerted was only twice 1,920 or 3,840 pounds, while the defendant’s own expert stated that, in good order, such apparatus should sustain from 6,000 to 10,000 pounds. No witnesses claimed that the plaintiff’s intestate had any intimation that the apparatus was defective, or weak, or unsuitable to bear the weight proposed for it. The captain stated that the de

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ceased was an intelligent man who understood his business. The captain did not know that the apparatus was defective, neither did the mate.

Strong dfr Cadwalader, for app’lt; Edward C„ James, for resp’t.

Whatever be said of the merits of the controversy arising from various theories, legal or philosophical, the fact is indisputable that the apparatus used for the purpose of unloading the ship was worn out and defective. It had not been properly looked after. If it had been the defect would have been discovered. The defendant’s ignorance of its condition is of no avail. What ought to be done must be done. Benzing v. Steinway, 101 N. Y., 547 .

Safety it would seem has become subservient to enterprises, and life and limb are less thought of than the profits to be gained by imperilling them. When danger attends the performance of any labor, to require the best methods to avert it, or the perfect condition of the means used and its constant examinations is placing but a light burden upon the employer. In the absence of notice to the contrary the servant has a right to assume that the appliances furnished for his use are safe and suitable. Kain v. Smith, 89 N. Y., 375 .

If, on the morning when the intestate was killed, a careful inspection of the apparatus had been made, and which would have taken but a short time, the calamity would have been prevented. The rules of law, -it may be said, are not as rigorous on the subject as they should be. Indeed it would be better for employers if they were more strict, and thus compel from personal advantage more scrutiny, more care, and consequently less danger of bodily injury to the employee and of personal liability to the master.

An examination of the record in this case not only suggests those thoughts, but shows that upon all the issues there was conflicting evidence, and the verdict of the jury must, therefore, be regarded as conclusive.

The various exceptions taken during the trial have been examined, and whether collectively or individually considered suggest no error which calls upon us to reverse the judgment.

The charge was elaborate, clear and embraced all the elements, not only as to the law, but as to the evidence and the facts; and the defendants received from the court aE the consideration to which they were entitled.

It is true that there is some testimony given on behalf of the defendants which tends to establish what may be regarded as perversity on the part of the decedent in using

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the apparatus in the manner in which he did. But there-is, nevertheless, a conflict on the subject springing from responsive evidence given on behalf of the plaintiff.

Aside from that, however, is the dominating fact already suggested, namely, the imperfect apparatus, and the conclusive evidence that if that imperfect condition had not existed, the use of the machine would not have resulted in the intestate’s death.

This case is analogous to the case of O’Halloran v. Bampton, decided by this court March 2, 1887 (7 N. Y. State Rep., 227), which is regarded as an authority for sustaining; the judgment in this case.

The judgment should be affirmed.

Daniels and Bartlett, JJ., concur.