Hugh Mulligan, Respondent, v. John B. McDonald, Appellant

Hugh Mulligan, Respondent, v. John B. McDonald, Appellant. First Department, December 30, 1909. Master and servant — negligence — injury by breaking cable — acts of fellow-servant — evidence not warranting recovery — appeal — issues not raised at trial. At common law a master who has provided reasonably safe appliances is not liable for injuries to a servant caused by the negligence of a fellow-servant in -. not selecting a reasonably safe appliance among those provided, or caused by the negligence of a fellow-servant in subjecting a proper appliance to a strain which could not reasonably have been anticipated. Where in a common-law action by a servant to recover for injuries sustained by the breaking of one of five guy ropes supporting a derrick, it appears that the defendant kept constantly on hand a sufficient quantity of new steel rope to be used for guys; that, the foreman selected three pieces of new cable to support the derrick and two which had been used but which he considered to be sufficiently strong and there is no proof as to which cable broke, a verdict for the plaintiff will be set aside as against the weight of evidence. Where at trial the plaintiff did not rely upon the provisions of the Labor Law and no question arising thereunder vras submitted to the jury, he. cannot on appeal sustain an unwarranted judgment on the ground that there was a violation of the statute. Appeal by the defendant, Jolin'B. McDonald, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of November, 1908,. lipón the verdict of a jury for $1,000, and also from an order' entered in said clerk’s office on the 16th day of November, 1908, denying the defendant’s motion for a new trial made upon the minutes. James F. Donnelly, for the appellant. Leonard F. Fish, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: Defendant appeals from a judgment entered upon a verdict and from an order denying a new trial. The action is for damages for personal injuries. Plaintiff was a stonemason in defendant’s employ, and at the time of the accident was standing upon a scaffold about fifteen feet high engaged in pointing up a masonry wall. Nearly over his head, and about thirty feet above him, ran a guy rope attached to a derrick. This guy rope was one of five that held the derrick upright. It was constructed of steel wire and was about one hundred and fifty feet long, running from the top of the derrick to a pin, known as a “ dead man,” stuck in the ground. For some reason, not clearly disclosed, this guy rope broke between plaintiff and the “dead man,” the end whipping him off the scaffold, throwing him to the ground, and producing the injuries for which he has recovered. The plaintiff testified that after he was injured he noticed the broken end of the guy rope and that it was jagged and rusty. All the other testimony on the subject is to the contrary, andit may well be doubted whether the plaintiff immediately after his injury would have observed the condition of the rope very critically. Although the plaintiff served a notice in compliance with the Employers’ Liability Act (Laws of 1902, chap. 600), the case was tried and submitted to the jury, with plaintiff’s acquiescence, as one of common-law liability. The court properly charged the jury that if the master had “provided reasonably safe appliances, and plaintiff’s injuries resulted from the negligence of a fellow-servant in not selecting a reasonably safe appliance when reasonably safe appliances were provided for him, or if the negligence of a fellow-servant in subjecting a proper appliance to a strain not reasonably to have been anticipated it would be subjected to, and negligence in either of these respects caused the plaintiff’s injuries, the defendant is not liable.” (Vogel v. American Bridge Co., 180 N. Y. 383; McConnell v. Morse I. W. & D. D. Co., 187 id. 341.) The evidence was clear and uncontradicted that defendant kept constantly on hand a sufficient quantity of new and practically new steel wire rope to be used for guys, and that this rope was available and open to the use of the foreman rigger, who selected what he thought fit and proper. In the case of this particular derrick, he had selected and used three new pieces of rope, and two which had been used, but which he considered sufficiently strong. It did not appear which guy broke. Upon this proof the verdict charging the defendant with negligence was clearly' against the evidence, if, indeed, it did not present a case for the dismissal of the complaint. The plaintiff now seeks to sustain the judgment under section 18 of the Labor Law (Gen.-Laws,, chap. 32; Laws .of 1897, chap. 415), on the theory "that the evidence justified a finding that the hoists, stays and scaffolding were not so placed as to properly protect the plaintiff. Without considering the question whether or not the Labor Law could be held to apply to the. facts proven in this case, which is at .least doubtful, it is sufficient that lio such claim was ' made in the court below, and the case was not submitted to the jury ■ on any such theory. (Rager v. Del., L. & W. R. R. Co., 64 App. Div. 134.) The judgment and order appealed from are reversed and a new trial granted, with costs to the appellant to abide the eve'nt. Ingraham, McLaughlin, Laughlin and Houghton, JJ., concurred. Judgment and order reversed and new trial ordered, costs to appellant to abide event.