Daniel F. Crilley, Appellant, v. New Amsterdam Gas Company, Respondent

Daniel F. Crilley, Appellant, v. New Amsterdam Gas Company, Respondent. Negligence — the furnishing of chisels made of coarse-grained, instead of fine-grained, . steel, held to justify a finding that the master had not furnished reasonably safe tools. In an action brought to recover damages for personal injuries sustained by the plaintiff, a boilermaker, while temporarily employed by the defendant in cutting rivets with a chisel, by being struck in the eye by a sliver from a chisel which he was using, 'it appeared that the chisels furnished the plaintiff were made by the defendant’s blacksmith of steel furnished by the defendant; that the plaintiff had complained to the defendant’s foreman about the breaking of the chisels furnished to him; that the foreman then brought him a chisel which he assured the plaintiff was all right; that the plaintiff, after examining the chisel and finding it apparently all right, struck it a few times with his hammer when a sliver from the head of the chisel struck the plaintiff in the eye destroying the sight thereof. The accident was due to the fact that the chisel was made of coarse grained steel, instead of fine-grained steel, which it was customary to use for chisels. Held, that it was improper for the court to nonsuit the plaintiff, as the jury might properly have found that the defendant had omitted to discharge its duty of furnishing the plaintiff with reasonably safe tools and appliances. Appeal by the plaintiff, Daniel F. Crilley, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings'on the 11th day of April, 1903, upon the dismissal of the complaint by direction .of the court after a trial at the Kings County Trial Term. William J. Bogenshutz, for the appellant. Edwin A. Jones [Albert Van Winkle with him on the brief], for the respondent. [MAJORITY — Miller, J.:] Miller, J.: The' evidence in this case would have warranted a' jury in finding that the plaintiff, a boilermaker, while temporarily in the employ of - the defendant, to whom he was sent by his regular employers, while engaged in cutting off the heads of rivets on a hydrogen generator,' was injured by being struck in the eye by a sliver" from a chisel which he was using; that the plaintiff had had trouble with the chisels theretofore furnished him caused by their breaking, of which he had comjilained to the defendant's foreman; that said foreman had brought him the chisel causing the injury and had assured him that it was all right and that upon an examination before using it, so far as the plaintiff could discover, it appeared to be all right; that it had been struck only a few times with the hammer when the sliver from the head of the chisel struck the plaintiff in the eye pausing an injury which resulted in- the loss of the sight of the eye; that the cause of the chisel breaking was the fact that it was made of coarse-grained steel; that it was not customary to use anything but fine-grained steel in the making of chisels to be used for the purpose for which this one was used, for the reason that the coarse-grained steel will sliver away and break from the effect of blows, while the fine-grained steel will not; that, therefore, coarse-grained steel was not suitable to be used for the purpose; that the chisels were made by the defendant’s blacksmith of steel furnished by the •defendant, but not at the samé place where plaintiff was working. The foregoing statement will suffice to show that a jury might have found that the cause of the plaintiff’s injury was the negligence of the defendant in omitting to discharge the duty which it •owed to the plaintiff- of furnishing him reasonably safe tools, and appliances, and that the tool furnished was made of unsuitable material which it was not customary to use for the purpose. Therefore, without further discussion; it is apparent that the court erred in nonsuiting the plaintiff, for which reason the judgment must be reversed and a new trial granted, costs to abide the event. Hirsghberg, P. J., Woodward, Jenks and Rich, JJ., concurred. Judgment reversed and new trial granted, costs to abidé the event.