McGoldrick v. Metcalf — 44 N.Y. St. Rep. 476

Majority

p. 476

Michael McGoldrick, App’lt, v. Samuel Metcalf, Resp’t.

(City Court of Brooklyn, General Term,

Filed February 23, 1892.)

Headnote

Master and servant—Negligence.

Plaintiff was directed by defendant to chip off the rough places from an iron casting weighing 1,250 pounds, which lay on a truck. In doing; so he moved the casting with a stick and let it roll back, when it struck, the rung which had held it in position and broke it, and the casting fell-on plaintiff. An expert testified that he would not trust the rung to hold 100 pounds; but it appeared that it was used temporarily until other castings were put on the truck, and was conceded to be sufficient for that purpose if the casting was not moved. Held, that a dismissal of the complaint-was properly granted.

Appeal from judgment dismissing the complaint.

Fdmund R. Terry, for app’lt; Chas. G. Nadal, for resp’t.

The plaintiff was directed by the defendant, his employer, to chip off the rough places on an iron cylinder,, which was at the time on a truck, in front of the defendant’s-foundry. The cylinder had just been placed on the truck, and was blocked only by a piece'of wood called a rung. The plaintiff had been directed, on the prior day, to do the same work in the foundry and before the cylinder was loaded, and says that he did a portion, and, on, his return on the day that he was injured, forgot to go on with the work until he was directed so to do by the defendant McGoldrick had done similar work before and

p. 477

had been working in the foundry for several years. Other castings were to be placed on the truck, and we understand, from, the testimony, that the rung was placed behind the cylinder simply as a temporary block, until the truck was loaded. The plaintiff commenced to work, and, finding the cylinder in an inconvenient position, moved it He stood on the truck behind the cylinder, and rolled it up about ten inches with the aid of a long stick, then turned the cylinder slightly, and allowed it to come back against, the rang with such force as to break it The cylinder then rolled upon plaintiff, who thereby sustained severe injuries. The plaintiff could have called upon fellow workmen to assist him, and there-were other rungs and sticks of wood at hand.

On the former appeal, 37 St. Rep., 611 , we held that the plaintiff should have been nonsuited. The only substantial difference in the record now before us is in the expert testimony. An expert called by plaintiff on the trial testified that he would not trust, the rung in question to hold a weight of 100 pounds. On the former trial, it was conceded that the rung would hold a weight, of three tons, provided the cylinder had not been moved. It is undisputed that the rung was only placed behind the cylinder temporarily until other castings were put on the truck, that rungs-of the same kind were ordinarily used for such a purpose, that the plaintiff knew the use of the rung, and that it held the cylinder until moved by the plaintiff. The fact that the rung was cross-grained is the only claim of negligence made by the plaintiff. We hold that the rung was sufficient for the purpose for which it was used, simply as a wedge to hold the cylinder temporarily. “ When he attempted to roll a weight of 1,250 pounds with a stick up an incline, we think that he took the risk in case any appliance broke, which, if the casting had not been moved.,, was reasonably safe for the purpose.” (See former opinion).

Judgment affirmed, with costs.

Van Wyck, J., concurs.