Paul Kaminsky, Appellant, v. Charles J. Benisch and Gustave Benisch, Respondents

Paul Kaminsky, Appellant, v. Charles J. Benisch and Gustave Benisch, Respondents. Second Department, September 10, 1912. Master and servant — negligence — injury by fall of derrick — erroneous nonsuit. Where in an action by a servant to recover for injuries sustained by the fall of a derrick owned by his master, it appeared that the partial support of the mast was a stiff leg coupled to it by an iron bar; that it had been in place for three years; that after the accident the bar was found broken and in the greater part of its width were indications of an old break, and the derrick was carrying a relatively light burden at the time of the accident, it was error to dismiss the complaint. Appeal by the plaintiff, Paul Kaminsky, from a judgment of the Supreme Court in favor of the defendants, entered in the office pf the clerk of the county of Queens on the 23d day of October, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case upon a trial at the Queens County Trial Term, and also from an order entered in said clerk’s office on the 13th day of December, 1911, denying the plaintiff’s motion for a new trial made upon the minutes. Alvin C. Cass, for the appellant. E. Clyde Sherwood [ William B. Davis and Amos H. Stephens with him on the brief], for the respondents. [MAJORITY — Thomas, J.:] Thomas, J.: Plaintiff, defendants’ servant, was seriously injured by the fall of a derrick owned by his masters. The partial support of the mast was a stiff leg coupled to it by an iron some six or seven feet long, six inches wide and an inch and a half or two inches thick. It had been in place for three years, and after the accident it was found broken and in the greater part of its width there were indications of an old break and only one or two inches of it showed a new break. The derrick was carrying a relatively light burden, and the fall was apparently not due to immediate abuse of its capacity. The jury would have been amply justified in tracing the fall to the failure of support intended by the iron connecting the mast and its prop, and in finding a cause therefor in the condition of the iron, weakened so materially by the crack, whereby it was bereft of its adequate strength, and in finding that masters, who permitted a part of vital use to reach a state of such decay, did not use ordinary care for the reasonable protection of the servant. The judgment and order should be reversed and a new trial granted, costs to abide the event. Hirschberg, Burr, Carr and Rich, JJ., concurred. Judgment and order, reversed and new trial granted, costs to abide event.