Opinion
November Term, 1901.
Frederick E. Crane, for the appellant.
William N. Dykman, for the respondent.
At the time of the accident the plaintiff was defendant's lineman, at work on the reconstruction of defendant's electric traction system of overhead wires. He stood upon a ladder, near the top of one of its upright iron poles, engaged in fastening span wires into a "brookline" or "turnbuckle," which was attached to the pole. The defendant's span wires were stretched across the street from pole to pole in support of the feed wire which ran through the center of the street parallel with the tracks. The span wires, when in contact with the feed wire, were charged with electric current, and the "brookline" was an insulator to stop the flow of current from the span wires into the iron poles. The "brookline" is a metal appliance, eight or ten inches long. It consists, first, of a spool (ending in a ring) filled with mica, or with mica and asbestos. Then a tube covered with insulating material is set into the spool, and, finally, an eyebolt, working freely, screws into the spool. The span wires are connected with the brookline, and in the work it was necessary to lift up the brookline as it hung from the top of the iron pole and to pass the span wires through the eyebolt. The plaintiff lifted the brookline by the eyebolt, then took hold of the span wires and therefrom received a severe shock of electricity.
Subsequent to the accident it was found that the brookline had leaked and thereby had become defective. There was no evidence that the defect was visible. It was not contended by the defendant that it had made any inspection of the brookline at any time. But its president testified that the defendant had purchased all of its brooklines from a reputable manufacturer, who had agreed to make an inspection in the factory before delivery to the defendant, and that the defendant in its subsequent use of these brooklines relied upon that promise. At the close of the testimony, the learned court held that there was not sufficient preponderance of any violation of duty upon the part of the defendant to justify a verdict, and that as the defendant had bought the brooklines from a reputable manufacturer, who assumed the duty of inspection, the defendant was not negligent in failing to make another test. The obligation of the defendant was to furnish to its employees good and suitable appliances and to use reasonable care to keep them so. ( Byrne v. Eastmans Co., 163 N.Y. 461.) The master's duty in choosing materials for his servants is to use care similar to that which a man of ordinary prudence in similar business, acting for his own safety, would use in choosing such materials for himself, were he doing the work. The rule is the same whether the master buy the appliance ready made, cause it to be made, or purchase the materials and make it. ( Carlson v. P.B. Co., 132 N.Y. 273.) We think that the learned court erred in holding as matter of law that the defendant had shown a discharge of its obligation to its servant. Of course, we do not hold that the obligation upon the master requires him always to inspect appliances, so that proof of omission to inspect is proof of negligence. But there are two features in the testimony in this case which, in our opinion, made the question one for the jury.
First. There is no proof whatever that the manufacturer ever made any tests of the brooklines; the testimony only goes to show that the manufacturer made a verbal promise that he would test them. Second. There is testimony that practicable tests could be made by the defendant of the brookline in its finished form, which would have revealed the defect in question, and that the defect was not inherent in the material or construction, but was due to a leakage from the appliance. Therefore, a discrimination may be made between this case and a case like Carlson v. P.B. Co. ( supra). In the Carlson case there was proof of tests made in the manufacture of the material sold to the master; the defect complained of was inherent in the material, and the only tests which could have been made by the master after purchase were those which were appropriate to the process of manufacture and then impracticable, except that the appliance was impaired or destroyed In Flood v. W.U. Tel. Co. ( 131 N.Y. 603), cited by the learned counsel for the appellant, the court say that the crossarms on telegraph poles manifestly were not intended to bear the whole weight of any person. In the case at bar the very purpose of the brookline was insulation, the plaintiff in the work was compelled to handle it, and the injury was due to its failure as an insulation. In the Flood case the court say that there was no negligence in furnishing and putting up the arm originally. The question in this case is whether the master used due care in furnishing the brookline. In the Flood case the court say that there was a system of inspection for the arms when purchased. In the case at bar there is a total failure of proof of inspection at any time by either maker or master. In the Flood case the court say that the defendant also had a system of inspection that was all that was practicable. In the case at bar there is testimony tending to show that inspection was practicable, but there is no proof that any inspection was ever made. In the Flood case the court say that the plaintiff knew that he must rely upon his own judgment in placing his weight upon the arm, which the court theretofore had said was not intended to bear the whole weight of any person. In the case at bar it was necessary for the plaintiff to connect the brookline with the span wires, and he had a right to rely upon the fact that the master had used due care in furnishing an apparatus the very purpose of which was insulation. We express no opinion as to the liability of the defendant, but reverse the judgment upon the ground that the testimony required the submission of the case to the jury.
Judgment reversed and new trial granted, costs to abide the event.
GOODRICH, P.J., BARTLETT, WOODWARD and HIRSCHBERG, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event.