Probst v. . Delamater

Ruger, Ch. J. We are of the opinion that no exception appears in the case requiring the reversal of the judgment. The question as to the contributory negligence of the plaintiff was one of fact, and was properly submitted to the jury upon conflicting evidence. The charge of negligence against the defendant was predicated upon two specifications, viz.: the first importing that the injury to plaintiff was occasioned by the use of old and defective appliances, in the prosecution of the work in which he was employed, and the other charging the defendant with knowingly employing improper, drunken and incompetent assistants, to aid in such work. Some evidence was given in support of both of these specifications (Miller v. N. Y. C. & H. R. R. R. Co., 99 N. Y. 657.) An exception was taken to the admission of evidence tending to show that the engineer in charge of the hoisting apparatus on the morning in question, was intoxicated. The objection taken was stated to be that the evidence was immaterial and did not tend to show that he was an unsafe engineer. It is quite certain that the intoxication of a person-having charge of machinery used in hoisting heavy materials, liable from their great weight to break away and fall, is, quite material upon an issue as to who was in fault for an injury occurring from such a fall, and tended legitimately to prove the incompetency of such engineer to perform the duties with which he was charged. Whether the proof was sufficient to establish the allegation, or required additional evidence to charge the defendant with knowledge of the fact, was quite a different question, and was *272 not raised by the objection. The exception, therefore, was not well taken. It may also be said that no motion was made to strike out this evidence, neither was any request made to the court to charge in reference thereto. It seemed to be assumed by all parties that the evidence of incompetency from drunkenness was insufficient, to support the charge of negligence, and the case was not put to the jury on that ground. An exception was also taken to the refusal of the court to charge that the defendant was entitled to any doubt which the jury may have. This exception, within the rule laid down in Seybolt v. N. Y., L. E. & W. R. R. Co. (95 N. Y. 570), was not well taken. The only remaining exception requiring notice is that taken to the charge, stating “ that it was the duty of the defendant to furnish a safe and secure rope or cable at the commencement of the work; that if they find this cable was not a safe and secure cable in the first instance the defendant was guilty of negligence.” The rule as stated was undoubtedly broader than the authorities would justify, and if the attention of the court had been called to the point, and it had then refused to charge the proper qualifications of the rule, it would have been error. Although the duty in question has been stated in several cases in this court, substantially in the language used in this case, it has generally occurred in defining the duty of the master as distinguished from that which may be delegated to a subordinate, and because the circumstances of the particular case did not call for the application of the limitations to the rule. (Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y. 368; Kain v. Smith, 80 id. 458; Cone v. Del., L. & W. R. R. Co., 81 id. 206; Ellis v. N. Y., L. E. & W. R. R. Co., 95 id. 552.) The duty of the master to furnish safe, suitable and sound tools, machinery and appliances for the use of the servant in the performance of the work of the master, and to keep them in repair, is not an absolute one, and is satisfied by the exercise of reasonable care and prudence on the part of the master in the manufacture, selection and repair of such *273 appliances. (Fuller v. Jewett, 80 N. Y. 46 ; Painton v. Northern Cent. R. Co., 83 id. 7 ; Ellis v. N. Y., L. E. & W. R. R. Co., supra ; Burke v. Witherbee, 98 N. Y. 562.) This is a duty which cannot be delegated to a servant so as to excuse the master from damages occurring through an omission to perform it, yet when the master has exercised all of the care and caution, which a prudent man would take for the safety and protection of his own person, the law does not hold him liable for the consequences of a defect which could not be discovered by careful inspection or the application of appropriate tests to determine its existence. The attention of the court below was not in any way called to this question, and as the evidence did not show the exercise of any care on the part of the master in selecting the appliances used, it was not error for the court to omit allusion to it in the charge. The judgment should be affirmed. All concur. Judgment affirmed.