Hohl v. Hewitt Motor Co. , 103 N.Y.S. 755 ( 1907 )

GILDERSLEEVE, P. J.

Plaintiff, a lathe operator in a machine shop, reshaped a back center of the lathe, and the defendant’s blacksmith retempered it. This appears to be the usual method of machine repair in the shop. Plaintiff replaced the repaired back center and resumed his ordinary machine-shop work. Subsequently, while so engaged, this back center broke, and a piece of it injured plaintiff’s eye. The plaintiff qualified as an expert witness, for a long time familiar with the character of steel and an expert machinist. He then testified that he had tested the back center after the accident by filing it, which is apparently admitted to be the proper test, and that the temper of the back center had not been changed between the time of the accident and the time he tested it, because the surface of the fracture remained unchanged, which could not be the case if it had been heated sufficiently to affect the temper. He then testified that he found it tempered too hard, so that it had been rendered brittle, and therefore had broken. There is some conflict of proof, and the issues were submitted to the jury, who found a verdict for plaintiff. A motion was made to set aside the verdict “as against the weight of evidence and against tire law, and for the reasons stated in section 999 of the Code.” Decision was reserved, and subsequently the motion was granted, without opinion, by the learned court below.

The employer’s liability act makes a defendant responsible for a defect in “machinery * * * where * * * personal injury is -caused to an employé * * * by reason of any defect in the condition of the * * * machinery connected with or used in the business of the employer, which arose from or had not been discovered or remedied owing to the negligence of the employer, or of any person in the service of the employer and intrusted by him with the duty of seeing that the ways * * * or machinery were in proper condition.” Laws 1902, p., 1748, c. 600, § 1. It is under this statute that the action is brought. As the blacksmith was the person in the service of the employer intrusted with the duty of “tempering,” it can hardly be claimed that he was not at the same time intrusted with the duty to see that it was tempered properly. After the completion of the repair, the plaintiff, in operating the machine on ordinary machine-shop work, did not assume the unknown, concealed danger of the defect in temper caused by defendant’s blacksmith. The defect in tempering was concealed and unknown, and there is nothing to show that plaintiff assumed the risk. See Jenks v. Thompson, 179 N. Y. 26, 71 N. E. 226.

After the completion of the repair, the defendant became responsible to the plaintiff, while he was ’operating the machine on ordinary machine-shop work, for any previous negligence of its representative, the blacksmith, in repairing machinery for an employé, within the scope of the employer’s liability act. The statute places the affirmative duty on defendant of using due care in providing machinery, and as to its servant engaged in using its machinery it cannot disclaim responsibility for the acts of those whom it employs to provide or remake such machinery. The negligence of the blacksmith was the negligence of the employer, this defendant. The question of the defendant’s negligence is within this statute, and was for the the jury to determine, as was also the question of plaintiff’s contributory negligence. There was sufficient evidence to sustain the verdict in favor of plaintiff, and it was error to set it aside.

The order should be reversed, and the verdict reinstated, with costs.

All concur.