Maggie Smith, as Administratrix, etc., of Joseph Smith, Deceased Respondent, v. The Green Fuel Economizer Company of Matteawan, New York, Appellant

Maggie Smith, as Administratrix, etc., of Joseph Smith, Deceased Respondent, v. The Green Fuel Economizer Company of Matteawan, New York, Appellant. Second Department, January 10, 1908. Master and servant — negligence — fall of ladder — contributory negligence —• recovery for negligence not alleged. When in an action to recover for the death of an expert machinist, it appears that in order to put a belt on a revolving pulley ho placed a ladder against the shaft so far from the pulley that he was obliged to lean from the ladder to such á degree' that it tipped sideways and threw him upon the shaft, the complaint should bé dismissed. ■ Under the circumstances a recovery cannot be based upon the fact that the ladder was slightly warped, as th(nt was not the proximate cause of the accident. Moreover, as the deceased liad been in the habit of using the ladder, ho was as competent as any one to say whether it was safe. The rule of a master’s liability applicable to complicated and dangerous machinery does not apply' to simple appliances like ladders. The defect in the warped ladder is not available to the plaintiff when it appears that the deceased himself selected it from other ladders not warped. There being no allegation that the ladder slipped because of a greasy floor and there being no proof that the floor was dangerous for that reason, it is error to permit the jury to find a verdict upon that ground. Appeal by the defendant, The Green Fuel Economizer Company of Matteawan, New York, from a judgment of the Supreme Court in favor of the plaintiff entered in the office of the clerk of the county of Dutchess on the 21st day of June, 1907, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 12th day of June, 1907, denying the defendant’s motion for a new trial made upon the minutes. Eugene Lamb Richards, Jr. [Rutherford B. Meyer and Frank Verner Johnson with him on the brief], for the appellant. Charles Morschauser, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: The deceased, an expert machinist, worked in the defendant’s machine 'shop. He put a ladder up against a shafting and went up to put a belt on a revolving pulley. He leaned his body over to the right away from the ladder, and with his extended right hand was trying to force the belt on the pulley, when the ladder tipped sidewise and threw him upon the shaft and to the floor, killing him. In place of moving the ladder over close to the pulley, the deceased leaned over so far that he tipped the ladder over. There was nothing to go to the jury and the motion to dismiss should have been granted. There was some evidence that the ladder was to some extent warped, so that it was not so exactly true that if you put. it up against a wall all four points would touch at once; but the accident did not happen from that. Moreover, the deceased had been in the habit of using the ladder and was as competent as any one else to say it was safe. The rule of employer's liability ¡.applicable to complicated and dangerous machinery does not apply to simple things like ladders (Marsh v. Chickering, 101 N. Y. 396; Cunningham v. Peirce, 112 App. Div. 65; Hart v. Villaqe of Clinton, 115 id. 761); and also there were other ladders present for use that were not warped, and the deceased should' have taken one of' them if the one he used was'really unfit (McConnell v. Morse I. W. & D. D. Co., 187 N. Y. 341). • There was some evidence about the fioor’of the.shop being to some extent greasy, but only as is necessarily the case in all machine shops;, and yet the learned'trial judge spoke of that to the jury, and apparently left, them to find'a- verdict for the plaintiff ’ on that ground; but the accident did not happen, from a greasy floor, nor is there any allegation in the complaint that it did, nor was there any proof that the floor was dangerous from grease. The judgment should, be reversed. Woodward, Jenks, Hooker and Miller, JJ., concurred. • Judgment and order .reversed and new trial • granted, cpsts to abide the event.