King v. New York Central & Hudson River Railroad ( 1875 )

Learned, P. J.:

It seems to me that some of the doctrines of Wright v. New York Central Railroad (25 N. Y., 562) have been modified. Warner v. Erie Railway (39 N. Y., 468) seems to establish that it is the duty of the master, not only to erect a structure to be used in his business without fault as to plan, construction and materials, but to supervise, examine and test it as frequently as custom and experience require. Laning v. New York Central Railroad (49 N. Y., 521) says that the duty to the servant is, that he shall be under no risk from imperfect or inadequate machinery. It is a duty to be affirmatively and positively fulfilled and performed. If the duty of the master is, that the servant shall be under no risks from imperfect or inadequate machinery, this certainly imposes some duty of maintenance as well as of original construction. It would be idle to say that the master was under an obligation to provide a safe machine in its original construction, but that he might allow it to become utterly and notoriously unsafe without incurring any obligation. In the language of the case last cited, the duty is not performed “ until there "has • .been, placed for the servant’s use, perfect and adequate physical means.” So, too, the ease of Coughtry v. Woolen Co. (56 N. Y., 126) declares that the duty of the defendants toward any person invited to go upon the structure was “ to use proper diligence in its construction and maintenance.” And, on principle, the nature of the obligation must be the same. Of course, when a man has made a safe structure, he may reasonably expect that it will remain safe for a time. How long will depend on the nature of the structure and its use. How soon he must, as a prudent man, cause it to be examined, will depend on the circumstances of each case. But, I think, the decisions require from him reasonable attention to the matter, according to the amount of wear which the use of the machine causes. This was stated -by the court in its charge: “ It was further their [the defendants’] duty, as the derrick was in continued use, to examine it from time to time, and to make repairs when needed, so that persons using it could do so with safety.” The court further charged, that if the plaintiff knew, or had reason to know, that the machine was dangerous, and continued to work, he could not recover. And further, that if there was a contract on the part of Dillon to take the responsibility of inspecting the machine and reporting its defects, and the plaintiff knew of this, he could not recover. This was sufficiently favorable to the defendants. An agreement by Dillon relieving the defendants from a duty imposed upon them by the law, should not take away from the plaintiff the right to have a safe machine provided for him — at least when he was ignorant of such agreement. If, as the cases hold, the defendants owed a duty to the plaintiff of providing and maintaining a safe machine, and then made an agreement with Dillon» to repair, when notified by him, this did not release them from their duty to the plaintiff without his consent. The charge of the court stated the law carefully; and, as to the defendants’ requests, it is well said by the Supreme Court of the United States: -“It is not error for a court to refuse to give an extended series of instructions, even though some of them may be correct in the propositions of law which they present, if the law arising upon the evidence is given by the court with such fullness as to guide correctly the jury in its findings.” (Railway Co. v. Whitton's Admr., 13 Wall., 270.)

The exceptions to the admission of evidence, with the qualifying remarks of the court in respect to them, do not, I think, warrant a new trial.