Harry C. Schlappendorf, Respondent, v. American Railway Traffic Company, Appellant

Harry C. Schlappendorf, Respondent, v. American Railway Traffic Company, Appellant. Second Department, April 30, 1913. Master and servant — negligence injury by hoisting apparatus — negligence of fellow-servant—failure of master to notify servant of danger — when knowledge of superintendent knowledge of master. It seems, that where the plaintiff’s fellow-servant continued to operate a hoisting apparatus without any authority and without the knowledge of the master at a time when one of the clips holding the hoisting cable had become displaced with the result that the cable slipped, allowing the bucket to fall and injure the plaintiff, the master is not liable. But where the plaintiffs fellow-servant notified the masters foreman of ' the defect over forty minutes before the accident and the master, although it notified its inspectors, did' not warn the plaintiff but allowed him to continue to work in ignorance of the danger, the jury may find the master liable in failing to give notice and that the knowledge of the foreman was chargeable to the master. Appeal by the defendant, the American Railway Traffic Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of October, 1912, upon the verdict of a jury'for $9,250, and also from an .order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes. .James J. Mahoney [M. J. Wright with him on the brief], for the appellant. Frederick N. Van Zandt, for the respondent. [MAJORITY — Jenks, P. J.:] Jenks, P. J.: For a narrative of the casualty reference is made to the opinion upon the first appeal (142 App. Div. 554). The second trial produced additional evidence which must be considered upon this appeal. It is clearly established by the testimony of Plank that after oné of the clips became loose and displaced, the entire cable pulled out of the clamp so that the bucket dropped on one side but the cable itself did not break. The proximate negligence of the defendant, if any, began at the time of the displacement of the clip. The testimony, particularly that of Bartholomew, the installing engineer, of Van Btten, defendant’s superintendent, and of Groñbach, defendant’s servant who was in charge of inspection and repairs, justified the conclu-. sións that this particular cable was equipped with two clips and practically as of original installation; that two clips, adjusted in relation to one another, afforded greater security against the slipping of the cable than one clip; that two clips were placed upon this cable in order to prevent it from such slipping which had appeared in the cables of other plants of the defendant earlier installed with a clamp only, and that the cable when thus equipped with clips could not as a mechanical possibility slip. I think, then, that the jury could have con-eluded that the accident was due to the working of the machinery after the displacement of one clip. The continuance of work was the action of Plant, who the court charged, without exception, was the fellow-servant of the plaintiff. The plaintiff was injured within so brief a time after Plank discovered the displacement of the clip and had communicated that fact to Burns — estimated from forty minutes to an hour and a half — that the jury would not have been justified in finding any fault of diligence in inspection after the accident or in repair. There is no proof that Plank was authorized generally or specifically, much less ordered, to continue to work the machinery under such or similar conditions, and for aught that appears he did so without the knowledge, actual or imputable, of the defendant. If, then, the only negligence that could be determined, was in the conduct of Plank in continuance of the work, such negligence is not that of the defendant. (Lynch v. Bush Co., Limited, 89 App. Div. 286; affd., 180 N. Y. 547.) But the question remains whether the master, when notified of the defective condition of the machinery, should have done anything more than order inspection with "an eye to the necessity of repair or restoration. Should the master have ordered the machinery stopped until after such inspection, and if necessary until after the proper repair or restoration in order to make the machinery normal, or should the master in any event have warned the plaintiff that his continuance at the' work subjected' him to" a greater risk in that one of the clips, designed as security against the slipping of the cable, had become displaced ? Labatt on Master and Servant, in section 112, says: “But it seems inequitable and unreasonable to declare that the servant should always be the one to suffer, simply because the employer has been reasonably prompt' in taking the necessary steps for the repair of the defective instrumentality. The true rule, it is submitted, is that the duty of the master under these circumstances is not, as a matter of law, fully discharged, unless he at least sees that the servant is notified of the danger to which, he will be exposed while the abnormal conditions to. which that danger is owing are being rectified.” (And see also § 240, note 3, and cases cited.) We said in Franck v. American Tartar Co. (91 App. Div. 571): “But in any event, it surely is not the law that when the master is apprised of a defective place, he is not liable if he continues to offer it to. the servant provided an accident happens before he can, with due diligence, make the placó safe. I know of no such interval of immunity.”. I think that these were questions for the determination of the jury. I think that the court submitted properly to the jury the status- of Burns, to whom Plank communicated the fact that the machinery was out of order, and (according to the testimony of Plank) the precise defect, and that the jury could .have found that the. notice given to Burns was sufficient to charge the defendant with notice of the temporary defect and the'character thereof. There was no proof that the defendant, after notification ' of the dislodgment, did anything save to notify its inspectors. The plaintiff testifies that he did not observe the defect at all and that he was not warned in any way, but was permitted, to continue in his work. This possible duty of the master was suggested by the learned court in its instructions.- I advise affirmance of the judgment, with costs. Present — Jenks, P. J., Hirschberg, Burr, Rich and Stapleton, JJ. Judgment unanimously affirmed, with costs.