McGoldrick v. Metcalf ( 1892 )

Clement, C. J.

The plaintiff was directed by the defendant, his employer, to chip off the rough places on an iron cylinder, which was at the time on a truck, in front of the defendant’s foundry. The cylinder had just been placed on the truck, and was blocked only by a piece of wood, called a “rung.” The plaintiff had been directed, on the prior day, to do the same work in the foundry, and before the cylinder was loaded, and says that he did a portion, and, on his return on the day that he was injured, forgot to go on with the work until he was directed so to do by the defendant. McGoldrick had done similar work before, and had been working in the foundry for several years. Other castings were to be placed on the truck, and we understand from the testimony that the rung was placed behind the cylinder simply as a temporary block until the truck was loaded. The plaintiff commenced to work, and, finding the cylinder in an inconvenient position, moved it. He stood on the truck behind the cylinder, and rolled it up about 10 inches, with the aid of a long stick; then turned the cylinder slightly, and allowed it to come back against the rung with such force as to break it. The cylinder then rolled upon plaintiff, who thereby sustained severe injuries. The plaintiff could have called upon fellow-workmen to assist him, and there were other rungs and sticks of wood at hand. On the former appeal (14 N. Y. Supp. 269) we held that the plaintiff should have been nonsuited. The only substantial difference in the record now before us is in the expert testimony. An expert called by plaintiff on the trial testified that he would not trust the rung in question to hold a weight of 100 pounds. On the former trial it was conceded that the rung would hold a weight of three tons, provided the cylinder had not been moved. It is undisputed that the rung vas only placed behind the eylinder temporarily, until other castings were put on the truck; that rungs of the same kind were ordinarily used for such a purpose; that the plaintiff knew the use of the rung; and that it held the cylinder until moved by the plaintiff. The fact that the rung was cross-grained is the only claim of negligence made by the plaintiff. We hold that the rung was sufficient for the purpose for which it was used,—simply as a wedge to hold the cylinder temporarily. “When he attempted to roll a weight of twelve hundred and fifty pounds, with a stick, up an incline, we think that he took the risk in case any appliance broke, which, if the casting had not been moved, was reasonably safe for its purpose.” See former opinion. Judgment affirmed, with costs.