Opinion
October, 1905.
E.W. Cushman, for the appellant.
Julius M. Mayer, Attorney-General, and Willis H. Tennant, Deputy Attorney-General, for the respondent.
The contention of the claimant is that the pile driver was an unsafe and unfit machine and apparatus furnished to work with and that the injury occurred by reason thereof. No opinion was written upon the dismissal of the claim in the Court of Claims, but the motion to dismiss was made upon the grounds that there was no evidence of any defect in the implement, nor of any negligence on the part of any one having charge of it, and if there was any negligence it was the negligence of a coservant engaged in the same employment as the claimant. There was much evidence of the defective operation of the gearing and of the great difficulty in throwing the machine out of gear. There was also evidence that the accident was caused because the gearing was so defective in operation that the jar of the machine caused by the falling weight let it go back in gear again.
The State was bound to use reasonable care in providing the claimant with machinery and appliances reasonably safe and suitable for his use and to keep such machinery and appliances in repair. The claimant's proof shows very clearly that the State was negligent in this respect and the decision that it was not was against the weight of evidence. The claim of the State, that even if there was negligence it was the negligence of a coservant, cannot be sustained upon the proof, because where defective machinery is furnished by a master in violation of the rule above stated, the rule which exempts him from liability for injury through the negligence of a fellow-servant does not apply. ( Kain v. Smith, 25 Hun, 146; affd., 89 N.Y. 375; Rollings v. Levering, 18 App. Div. 223.)
Nor can it be held upon this evidence that the claimant assumed the risk. It appears that Mr. Coman had knowledge of the defect in the apparatus and that the claimant did not have such knowledge. It is true that there is much evidence that there was trouble in operating the lever so as to disengage the cogs and that slight repairs were made a few times in an attempt to remedy the trouble and that the claimant had knowledge of these matters, but there is no testimony that he knew that the hammer in falling was likely to jar the cogs into position after they were disengaged, so that the handles would be set into such rapid motion as to cause them to break and injure him. It cannot, therefore, be said that the risk was an obvious one to the claimant. He had worked there but two or three days before the day of the accident and the proof is that all he knew about the defective workings of the machine was that the cogs were not easily thrown out of gear.
Upon the proof we think that the learned trial court was in error in dismissing the claim. The judgment should be reversed and a new trial granted, with costs to the claimant to abide the event.
All concurred.
Judgment reversed and new trial granted, with costs to appellant to abide event.