Nelson v. Dubois ( 1882 )

Beach, J.

[After stating the facts as above.]—The legal principle controlling the disposition of this appeal seems firmly established by numerous adjudications. To uphold the judgment, there must have been given upon the trial some proof justifying a submission to the jury of the question whether or not the defendants had been guilty of negligence producing the injury. The accident happened from the rope breaking by which the land machine was raised. The liability of the defendants could only result from evidence tending to show that they furnished the rope, knowing it to be inadequate for the purpose, or under circumstances warranting the conclusion of their ability to acquire knowledge of the fact, by the exercise of ordinary care and vigilance. The master is bound to use ordinary care and diligence to provide safe material for his servant, and if he knows it to be unsafe for use, or might have known it to be so, by the exercise of ordinary vigilance, he is liable (Noyes v. Smith, 28 Vt. 59 ; Mc Grarick v. Wasson, 4 Ohio St., 566 ; Feltham v. England, L. R., 1 Q. B. 33 ; Malone v. Hathaway, 64 N. Y. 5, and cases there cited).

The plaintiff’s witness testifies it was about a five-inch rope, such as is generally used for the purpose, and partially new. No proof shows it in an unfit condition, except the plaintiff’s general statement of its being a worn piece of rope, but did not look very bad. It having been obtained by the plaintiff’s fellow servant, and used by the plaintiff, the evidence of unfitness is extremely meagre and unsatisfactory, while the use by the plaintiff is undisputed. There is no evidence in the case tending in the least to show-knowledge in the master of whatever may have been the condition of the rope, or of its being in a dangerous state under circumstances charging him with knowledge. It rests upon the plaintiff to establish this, and he having failed to furnish any proof warranting such a conclusion, the motion to dismiss the complaint should have prevailed (Kunz v. Stuart, 1 Daly, 431 ; McMillan v. Saratoga, &c., R. R. Co., 20 Barb. 449 ; Sherman and Redfield on Negligence, § 99).

The judgment and order should be reversed and a new trial granted, with costs to abide the event.

Charles P. Daly, Ch. J., concurred.

Judgment reversed and new trial ordered, with costs to-abide event.