Shanley v. Stanley — 39 N.Y. St. Rep. 368

Majority

p. 368

Michael Shanley, Resp’t, v. John Stanley, App’lt.

(New York Superior Court, General Term,

Filed July 2, 1891.)

Headnote

Master and servant—Detective machinery—Negligence—Question FOR JURY.

In an action brought to recover damages for personal injuries sustained by a servant through the bursting of a kettle, about which he was working, plaintiff testified that he did not know of the defect, nor did it affirmatively appear that he was otherwise chargeable with contributory negligence. Defendant introduced evidence to prove contributory negligence. There was evidence to show that the kettle fastening had become unsafe from long use, and that defendant could have discovered it by the exercise of ordinary care and prudence. Held, that the question of plaintiff’s contributory negligence and defendant’s negligence were properly questions for the jury.

Appeal from judgment in favor of the plaintiff entered upon the verdict of a jury and from order denying defendant’s motion for a new trial.

Frederick G. Gedney, for app’lt; Goff & Pollock, for resp’t.

—This action was brought to recover damages for personal injuries sustained by the plaintiff through the negligence of the defendant. The plaintiff was a workman employed in and about the soap factory of the defendant, and engaged as

p. 369

such in the performance of his work at the time he sustained the injuries complained of. In the factory of the defendant there was an iron tank or kettle from which protruded a pipe which had been screwed into the tank or kettle in a way intended to secure a permanent fastening.

At the time of the accident the plaintiff, in the performance of his usual duties, was engaged, with the assistance of another man, in fastening another pipe to the pipe protruding from the tank or kettle, when the latter suddenly was blown or forced out and the boiling soap spurted out through the opening and injured the plaintiff. According to the testimony of the plaintiff he neither knew of the defect which caused the occurrence nor was he chargeable, as matter of law, with a neglect of duty in not having discovered the defect, nor did it appear affirmatively that he was otherwise chargeable with negligence which contributed. The question of plaintiff’s contributory negligence was, therefore, one for the jury. The testimony adduced by and on behalf of the defendant upon this branch of the case was not so convincing as to call for a different result.

The question of defendant’s negligence was also one for the jury. True, the defendant was not bound to furnish the best of known or conceivable appliances, and it was enough if the pipe protruding from the tank or kettle was fastened into it so as to be reasonably safe. But there was some evidence of improper and unsafe construction from the start which raised a question for the jury. Moreover, there was evidence upon which, if credited, the jury had a right to find that the fastening, if originally sufficient, had become unsafe by long continued use, and that the defendant,, by the exercise or ordinary care and prudence, could and should have discovered the fact, but that he failed to discover it because for years he had omitted to make any inspection or examination.

.The verdict, which was for only $500, accords with substantial justice, and upon the whole case none of the exceptions urged upon Ihe appeal presents ground for reversal.

The judgment and order should be affirmed, with costs.

Gtldeksleeve, J., concurs.