Thorn v. New York City Ice Co. — 11 N.Y. St. Rep. 845

Majority

p. 845

Joseph Thorn, App’lt, v. New York City Ice Company, Resp’t.

(Supreme Court, General Term, Third Department,

Filed November, 1887.)

Headnote

1. Master and servant—Liability of master for injury caused by defective instruments.

Where the instrument or tool furnished to the servant by the master is an ordinary implement, of which the servant has full knowledge and comprehension, the master is not liable for injuries resulting to the servant from a patent defect in said implement.

2. Same—Master need not furnish best appliances.

The master is not bound to furnish the best known or conceivable appliances.

The plaintiff had worked for the defendant in the ice business for two or three winters. His particular business had been what is called canal work. This consists in walking upon the solid ice in the river and pulling or pushing cakes of ice along the canal or channel by means of a long handled hook. In storing ice in the houses, and in stacking it in a stack outside the houses, the workmen use a shorter hook or one with a shorter handle. The plaintiff had worked for parties other than defendant at storing ice in houses or in drawing it out from the houses. There seems to be no difference in the nature of the work of storing ice, whether it is stored within a house or in a stack. In either case, the cakes of ice are drawn or pushed from the place of delivery to their proper places in the room or in the stack. It is stated that this work of storing the ice requires a sharper hook than that which is used in the canal work.

The plaintiff was directed one day to go and work on the stack of ice which had been commenced. He started to go to Kelly, whom he calls the boss of the stack, and to ask for a hook, when the paymaster by the ice house, Huntoon, called him back, and said: “There’s a hook you can take,” and gave him a hook, and said he would have to use it till he could get a better. He commenced working with Mattice, as it seems that the men work in couples. Mattice said he would not haul with the plaintiff if he used that hook. Plaintiff asked why. Mattice said he should sharpen it, for he might hurt somebody or himself. Plaintiff said he could not file it. Mattice said he should get some one, and pointed out one of the carpenters. Plaintiff went to this carpenter and had his hook filed, working with the carpenter’s hook until his own was returned. The carpenter said he had done the best he could, that it was not filed right the first time.

Plaintiff then hauled ice for two hours and a half. As he and his companion were hauling a cake it struck against

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another, which was higher. His companion took his hook out and reached under the cake and raised it. Plaintiff struck his hook in the cake three or four times; thought it was safe, turned to pull and his hook gave way, and he fell. In trying to prevent himself from going off the stack, he fell off the stack and was injured. They were then hauling the cake to the north end of the stack. He fell off a little north of the centre.

Mattice testifies that either the hook slipped or the ice broke. The stack was then six or eight feet high.

The plaintiff claims that the defendant was negligent in not furnishing a sharper hook, and also in not building some bamer around the stack which would prevent men from falling off.

The judge non-suited, and the plaintiff appeals.

R. E. Andrews, for app’lt; Frank E. Osborne, for resp’t.

—It seems to us that this case falls within the rule laid down in Marsh v. Chickering 101 N. Y., 396 ). The instrument or tool furnished the plaintiff was an ordinary implement, of which he had full knowledge and comprehension. It was not a complicated piece of machinery. He suspected that it was dull and was advised by Mattice to have it sharpened; he had it sharpened and used it without troub’e for over two hours. That it then lost hold is not shown to have, been owing to dullness; since a breaking of the ice would have caused the same result. If the hook was not sharp enough the plaintiff had as good opportunity to know this as the defendant. And further it does, not appear that even with a very sharp hook the ice may not break. One witness explains that the benefit of a: sharp hook is that, you are generally sure of keeping hold of the ice.

Nor does it appear that this hook was not reasonably safe and suitable. The defendant was not bound to furnish the best known or conceivable appliances. Burke v. Witherbee, 98 N. Y., 562 .

As to the neglect to put up a barrier around the ice stack. It appears sometimes that in constructing these stacks, pieces of wood are put in between every three courses or thereabouts. To these, uprights are fastened, and in the uprights boards are nailed. The principal object of this is to protect the ice from the weather. Of course, if carried above the course of ice on which the men are working, this structure forms to some extent a barrier. In the present case-this kind of structure had been commenced, but the boards were not yet above the course of ice.

This was visible to the plaintiff. He knew exactly the . peril if any there was. He was not working at a danger-

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pus height And if there was a risk of falling he knew and assumed it. Sweeny v. Berlin and J. E. Co., 101 N. Y., 520 , and cases cited at page 524. Further the plaintiff himself says that when he got so near the edge that it was dangerous, he would turn and shove the ice to its place instead of hauling it. If he had done so at this time the accident could not have happened. For in order that he should fall from the stack by the slipping of the hook or the breaking of the cake, he must have been hauling the cake and must have been near to the edge.

It seems to us then that there was no negligence shown in the defendant for which the defendant was hable; and that whatever risk the plaintiff incurred was known to him.

Judgment affirmed, with costs.

Landon and Williams, JJ., concur.