Ivers v. Minnesota Dock Co.

McLennan, J.:

At about eight o’clock on the. evening of the 8th day of August,; 1899, the plaintiff, as was his custom, commenced to assist in unloading ore'from a boat upon defendant’s dock in the city of Buffalo,. N. T. At that, time it was dark. He continued working until, between two and three o’clock in the morning, when an accident", occurred and he sustained the. injuries for which he seeks to recover.

The method of unloading boats adopted by the defendant was to-lower a bucket attached to the arm of a derrick operated by steam - into the hold of the boat; when filled raise it clear from the boat, and then swing it around a distance of about sixty feet to the ore-pile, where -the bucket was. dumped by releasing a clamp at the; bottom and thus permitting tire ore to drop out. The appliance for. dumping the bucket consisted of about three feet of chain which: was hooked to the bottom. At the other end of the chain there-"was a ring into which was fastened, by splicing, a rope about sixty-feet in ■ length and three-fourths of an inch in thickness, which, extended over the derrick and was held in hand by the plaintiff who-stood upon the deck of the boat, and upon receiving a signal from, a man at the dump it was his duty to pull the rope which, would cause the ore to discharge from the bucket, which he did; the rope-broke at the place where it was spliced or fastened into the ring of the chain, and he was thrown or twisted around in such manner as-to be injured thereby. The plaintiff had been employed by the-défendant in performing the same duty as at the time of the accident, continuously for three months immediately prior thereto, and" for about two months in the previous year. During all that timer the method of unloading boats and plaintiff’s duty in respect thereto-had been -substantially .the same.

The rope which broke had been in use only one day prior to the accident; it was new; was kept in defendant’s storeroom with a quantity or number of other ropes which were 'furnished by the defendant to its employees for doing the work in question. It was purchased of a reliable dealer as a first class rope, and a first class price paid therefor. Defendant’s foreman, who was in charge of the gang of men witli which plaintiff worked, selected the rope, got it out of the storeroom and furnished it to be used upon the derrick in question, and one of the men other than the plaintiff spliced it into the ring. This method of obtaining ropes, furnishing them to the men for use upon the several derricks, and attaching them, had been in vogue during all the time the plaintiff was in defendant’s employ. There is no suggestion that the rope was not of proper size, but it is urged that at the place where it broke it was rotten or defective, and that such defect could have been discovered by the exercise of ordinary care and prudence, and that, therefore, because of the failure of the defendant to discover such defect, it is liable for the injuries which the plaintiff sustained. It appears by the evidence that there was an ample supply of good and perfect ropes, in defendant’s storeroom from which to have selected one for the derrick in question; in fact, the rope which broke was again spliced into the ring and used until worn out. There is some evidence tending to show that by looking at the rope where it parted its defective condition could have been discovered, and also that on account of the darkness when the plaintiff went to work he was not in a position to observe such defect. It, however, appears that the foreman who selected the rope was entirely competent; that he had handled ropes and been engaged in such work nearly all his life, and he did not observe any defect. He testified, and his evidence is uncontradicted : “ Some of them (the ropes) would give out almost every day ; it was my business to see that they were kept straight, and if anything happened I would depend upon the men to tell me, and they usually did tell me if anything was wrong; I didn’t personally keep watch of each particular rope all the time to see whether it was right or not; that I left to the men and the men understood that. I never instructed them to that effect, but they always worked that way, and they often did come to me that way, and that was the way I depended on to find out whether they were in good shape or not.” It is not claimed that the employee who spliced the rope' into the ring of the chain or any other of plaintiffs coemployees were incompetent to perform their respective duties.

Upon the facts disclosed by the evidence in this case, we think the plaintiff failed to establish actionable negligence on the part of the defendant. It is well settled that, if a master furnishes his servants with materials of suitable quality and in sufficient quantity to enable them to safely do a particular piece of work, he is not liable because of an accident which results from an improper selection or use of such materials by such servants. (Moore v. McNeil, 35 App. Div. 323 ; McCone v. Gallagher, 16 id. 272; Yaw v. Whitmore, 46 id. 422.)

The last case cited was an action brought by an employee against the master, to recover -damages for injuries which he sustained by the falling of a derrick, which was caused by the breaking of an iron cable intended to liold the derrick in place. It appeared in that case that all or substantially all the - cables furnished for that purpose were more or less defective and unsuitable for the purpose intended, and the judgment entered upon the verdict of the jury in plaintiffs favor was affirmed; but the court said: “ Had new cables been furnished in sufficient quantity to secure the derrick, and had the same been apparently perfect in their construction, the defendants would probably have done all that could have been required of them; and if under these conditions an old and -worn cable had been selected and used by whomsoever was charged with the duty of erecting the derrick, his negligence in making the selection would he that of a coservant and not of the' master. Or if, under like conditions, one of the new cables had broken, no liability would have attached to the-master.”

The language quoted is particularly applicable to the facts of the case at bar. New ropes, perfect, purchased from a' reliable dealer as first class and for first class prices were furnished by the defendant in this case in abundance. All that was necessary was for the foreman to go to the storeroom and get such as he might need in the progress of the work. If the end of the rope which broke was in such condition that the foreman who' selected it and took it from the storeroom ought to have discovered that it was rotten or defective, and he was negligent in not doing so, it was the negligence of a coemployee for which the master is not liable. It was not the duty of the defendant in this case to watch the ropes upon the several derricks; see that they were at all times in proper condition; determine when they should be changed and new ones supplied. It had the right to delegate that duty to a competent employee, and for the failure to perform that duty the master is not liable. (Cregan v. Marston, 126 N. Y. 568.) The most that can be said, interpreting the evidence most favorably to the plaintiff, is that the very end of the rope in question, that part which was spliced into the ring at the end of the chain, was defective. The rest of the rope, as appears by the uncontradicted evidence, was sound and all right and was used until worn out. It would be extending the liability of a master further than has yet been done to hold that under such circumstances he is liable for an injury to an employee because he failed to discover that the very end of a sixty-foot rope, where it was spliced as in this case, was defective and in such condition as to cause it to break.

The judgment and order appealed from should be reversed, and new trial granted, with costs to the appellant to abide event.

Adams, P. J., and Williams, J., concurred; dissenting opinion by Spring, J., in which Hisoock, J., concurred.