Shanley v. Stanley — 59 N.Y. Super. Ct. 495

Majority

p. 495

MICHAEL SHANLEY, Respondent v. JOHN STANLEY, Appellant.

Headnote

Negligence—Action by employee of defendant for injuries, etc., while in such employment.

In this base, the plaintiff was employed by defendant as a workman in his soap factory, in which there was an iron tank or kettle from which protruded a pipe which had been screwed into the tank in a way intended to. secure a permanent fastening. The plaintiff, in the performance of his usual duties, was engaged with another workman in the fastening of another pipe to the pipe protruding from the tank, when the latter was suddenly forced or blown out, and the boiling soap spurted from the opening and injured the plaintiff. The plaintiff knew of no defect in the pipe or its fastening, 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 contributory negligence.

Held, that the question of negligence on the part of the plaintiff or defendant was one for the jury. The defendant was not bound to furnish the best of known or conceivable appliances, and it was enough for his defence to show that the pipe from the tank or kettle was so fastened as to be reasonably safe and secure; but there was some evidence of original improper and unsafe construction, and also some evidence, if credited by the jury, it had the right to find that the fastening, if originally sufficient, had become unsafe by long continued use, and that the defendant, by the exercise of ordinary care and prudence, could and should have discovered the defect, but that for years he had omitted to make any inspection or examination.

Held, that the question of negligence was properly submitted by the court to, and considered by, the jury, and their verdict and the judgment should be affirmed.

Before Freedman and Gildersleeve, JJ

Decided July 2, 1891.

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.

p. 496

Frederick G. Gedney, for appellant.

Goff & Pollock, for respondent.

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 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, writh 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 ques

p. 497

tion 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 of 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 the appeal presents ground for reversal.

The judgment and order should be affirmed, with costs.

Gildersleeve, J., concurred.