Jarvis v. Northern New York Marble Co.

Edwards, J.: I think that the learned trial court erred - in dismissing the.complaint. The law is well settled that the master is liable for an injury to the servant for defects in machinery which could have been discovered by the exercise of proper care, and a duty, is imposed upon the master to make such reasonable inspection from time to time as may be necessary to enable him to ascertain whether the machinery is in a reasonably safe condition for use by- the servant. (Ballard v. Hitchcock Mfg. Co., 51 Hun, 188 ; Egan v. Dry Dock, E. B. & B. R. R. Co., 12 App. Div. 559 ; Durkin v. Sharp, 88 N. Y. 225 ; Pantzar v. Tilly Foster Iron Mining Co.. 99 id. 368.) . The court, in granting the motion for a nonsuit, said : “ There is nothing to show that any inspection which would be reasonably expected from defendant would have discovered this (the defect iii the center of • the mast). * * * If they were bound to inspect it I think they made a proper inspection.” [275] I think the trial court was under a misapprehension of the law and the evidence. It is the province of the jury to determine whether or not a proper inspection has been made by the master when there is any evidence from which it may reasonably be inferred. (McGovern v. C. V. R. R. Co., 123 N. Y. 287; Egan v. Dry Dock, E. B. & B. R. R. Co., supra.) There was evidence in this case from which the jury might have inferred that the master had failed in the performance of its duty of inspection and that such omission was the cause of the injury. It clearly appears in the evidence, and does not appear to be controverted, that the mast of the derrick broke and fell in consequence of the dry rot of the interior, which was considerable in extent. The painting of this spruce mast when green had. a tendency to shorten its life and make it dozy and rotten within. This painting had made a sort of a shell of the exterior whereby the condition of the interior, by ordinary observation, was not discoverable. Whitmore says that at the time when he and the superintendent made an examination, four months before the accident, they did not take any means to ascertain whether the stick was dry rotted in the center, and says that he does not think it would be powder ported and dry rotted on September thirteenth, when it fell, if it had been thoroughly sound in the forepart of June, when it was set up the last time. Webb, the superintendent of the defendant, testified : “ During the four months it was in the last position after it was erected I did not examine the derrick at anytime * * * ; never took a bit and bored into the derrick and examined the chips to ascertain whether the interior of the stick was sound. If I or some of the men had taken a bit and bored into it and examined the chips that came out, we could have ascertained whether it was powder posted or dry rotted, possibly.” The defendant’s ignorance of the defective condition of the interior of the mast does not relieve him from liability if, by the exercise of proper inspection, it could have been discovered. (Benzing v. Steinway & Sons, 101 N. Y. 553.) The duty of inspecting the derrick to ascertain whether it was reasonably safe for use is not shown to have been delegated by the master to the plaintiff's intestate. It is true that Webb, who had been for eight years the superin [276] tendent of the defendant, says: “ When Jarvis (the intestate) was sét to work there, I gave him directions with reference to his care of the derrick. I told him 1 would hold him responsible for the proper care of that derrick,”'but lie also specified the duties of Jarvis, of which this was not one. Furthermore, it appears-from the testimony of the superintendent that he regarded inspection as his " duty, He says that he made the inspection when the derrick was setup, four months previous to the accident, and, in making the tests, he was assisted by Whitmore, who was employed in “ taking care of mill and machinery,” and further says that after the derrick had been set up he saw it every day, passed under it, observed its condition, ran his eye up and down the mast, looked at the cap at the top, saw the action of the guys that nothing had gone amiss, to see that'nothing of the anchorages had given away, and says : “ It'was part of my business to supervise those things.” There is no evidence from which the court can say that the duty of making the usual and ordinary tests to ascertain the condition of the interior of the mast and of determining whether it was reasonably safe for use was transferred from the defendant to the plaintiff’s intestate. Nor do I think that the defendant can relieve itself from liability on the ground that the intestate had the same means of knowing the defective condition of the mast as had the defendant, or that it was a risk which the servant assumed. It does not appear that the intestate had any knowledge of the defective condition of the' mast, nor was it discoverable by ordinary observation, nor was it his duty 'to make that inspection which alone would reveal the defective condition. The risks which the servant assumes are those which- are obvious or which are unavoidable after the master has exercised proper precaution in guarding against them; and the servant has a right to rely upon the performance of that duty by the master. (Pantzar v. Tilly Foster Iron Mining Co., supra.) I am of opinion that there were questions of fact in the case which should have been snbmitted'to the jury, and that the judgment entered- upon the nonsuit should be reversed, and a new trial granted, with costs to abide the event. All concurred Judgment reversed on law and facts, and a new trial granted, with costs of appeal to appellant to abide the event.