While a master is bound to exercise due care and diligence in selecting and furnishing fit implements for the use of his servants, he is not a guarantor of the safety of the machinery (Painton v. N. C. R. Co., 83 N. Y. 7). It is not claimed on behalf of plaintiff that the • tackle provided was originally of inferior quality. The contention is that the rope in question had been affected by dry rot and thereby weakened; that such defect was discoverable by inspection, and that it was the duty of defendant to so inspect and discover such imperfection. But the defendant is a corporation, and must act in this matter, as in all others, by its agents or employes, and the question arises, whose duty was it to make the proper inspection under all the circumstances of this case. I am of opinion that it was the duty of plaintiff’s intestate to inspect the rope chosen by himself, before putting it to use, and, in neglecting so to do, he was guilty of negligence, which if it had resulted in *232an injury to another person would have been imputable to the master, and must certainly defeat any recovery on behalf of himself or his estate. The evidence shows that the deceased, who was “ gangway man,” and two fellow employes went on the day named to a storehouse on the pier where all the tackle was kept, and themselves selected the “straps,” “whips,” etc., to be used in rigging the hatch for unloading cargo. The deceased was familiar with the appliances there at his disposal, and, being “ gangway man,” was charged with, the duty of putting up a proper and safe rigging. Obviously, in selecting the materials to be used, he was required to inspect them, and not to use any which were unfit for the purpose. To hold otherwise would be, in effect, to say that if any worn out or defective “ strap ” happened to be hanging in the storehouse, no matter how many perfect ones were there also, and an employe charged with preparing a proper rigging used such defective strap without .testing or inspecting it and was injured in consequence, the master would nevertheless be liable. In other words, it would be to require the master to guarantee every piece of rope that chanced to be in the storehouse. According to plaintiff’s own theory, the alleged defect was discoverable by inspection. If, therefore, the rope broke by reason of such defect, it must have been because the person whose duty it was to make the examination neglected it. As this person was plaintiff’s intestate himself, such negligence must prevent a recovery herein.
Plaintiff’s case is not strengthened by the claim that the accident resulted from the negligence of the storekeeper. It seems that such a person was employed to take general care of the storehouses or shanties on piers 20 and 21 in which the tackle was kept and of the tackle itself. An attempt was made to show that it was the exclusive duty of such storekeeper to select the materials to be used in' rigging any hatch, and that the longshoremen and stevedores were not permitted to help themselves to tackle, but were bound to apply to the storekeeper and use what he handed them. The evidence on this point is by no means satis*233factory. Plaintiff’s own witnesses admit that they have on occasions taken them own tackle, and defendant’s witnesses deny that it was the exclusive province of the storekeeper to select tackle for the men, and aver that his duties were merely general and supervisory, and that a “ gangway man ” was allowed and required to choose his own materials. But, however this may be, the storekeeper was absent when the intestate procured the tackle in question. The fact is undisputed that he and his companions selected it themselves. If he then assumed and undertook to perform the duty of another man, and injury resulted from an improper performance thereof, such injury would still be the result of his own negligence, for which of course his estate cannot recover.
I am of opinion, therefore, that in any view of the case, the plaintiff’s intestate was guilty of negligence, and that the complaint should have been dismissed.
The judgment should be reversed and a new trial granted, costs to abide the event.
J. F. Daly and Van Hoesen, JJ., concurred.
Judgment reversed and new trial ordered, with costs to abide event.