McAvoy v. Penna. Woolen Co.

Opinion,

Mr. Justice Green:

Only two witnesses were examined for the plaintiff, on the trial, in relation to the fork which, it is claimed, was the cause of the plaintiff’s injury. One of them was the plaintiff, and the other the witness Ray. The plaintiff thus testified in regard to the fork and the injury: “ Several days before the injury, I was working with the fork which afterwards caused the injury. It broke close by the iron part, and I took the two pieces to the boss dyer, to be mended. He sent me with them to the repair shop. The next time I saw this fork was the day of the injury. It was mended, and apparently all right. I took it up to use. While shoving the cotton into the vat of boiling dye, it broke, and I therefore fell into the vat. I was using it in a careful and proper way..... Q. You have said that this fork-handle, when you handed it in to be repaired, you handed it to the boss dyer ? A. Yes, sir; and he told me to take it out into what was called the machine-shop. Q. And it was left there to be mended ? A. Yes, sir; it was left out there with the boss to be mended. Q. The machinist mended it, didn’t he? A. I do not know who mended it, but I used it afterwards. Q. You could see that it had been mended? A. It looked like it. Q. It did not break where it had been mended ? A. I cannot say about that. Q. Did any one see the fork after it broke ? A. Yes, sir; Mr. Ray saw it.” It will be observed that this witness testified that when the fork was mended it was apparently all right, and that he could not tell whether it broke where it had been mended.

The witness Ray, after saying that he was working on the opposite side of the tub with the plaintiff, at the time of the accident, testified: “ Q. Did you see the fork with which he was working? A. Yes, sir; I had been working with him. Q. In what condition was it ? A. It was not in good condition. I did not consider it in good condition. I heard it crack. Q. Would it look all right to a person who picked it up? A. Yes, sir. Q. What was the matter with it ? A. I examined it after it broke off, and I considered it decayed. It looked as if it had been worm-eaten, or something like that. Where it broke off, at the end of the iron collar, it looked as though it had been worm-eaten; it had holes in it. Q. Was the wood decayed? A. It looked as if it had decayed from the effects of this dye. It was not crumbling away..... Q. Any one picking up this fork could not see there was anything the matter with it? A. No, sir. Q. It looked to be perfectly sound ? A. Yes, sir. I did not make any examination. It had cracked on me the day before, but, as it did not break, I did not say anything about it..... Q. And any one picking up that fork and looking at it would suppose it to be all right ? A. Yes, sir. Q. That part which broke, you say, looked as though it was worm-eaten ? You could only see that after the handle was broken? A. Yes, sir..... Q. You, as a careful man, would have considered that fork perfectly safe to use at the time'? A. Yes, sir; from the looks of it.”

Both of these witnesses say that apparently the fork was sound after it was mended, and Ray says that it would have been considered, by a careful man, perfectly safe to use at the time. There was therefore no visible defect in the fork. Neither of the witnesses testifies that it broke at the place where it was mended, and there is not a scintilla of evidence on the record to show this fact. The witness Ray said there was a latent defect at the place where the handle was broken, at the end of the iron collar, and this defect he only saw after it was broken. It appeared to be worm-eaten; had holes in it. This is the whole of the plaintiff’s testimony on this subject, and it proves affirmatively that the fork was apparently perfectly sound; that there was a latent defect not visible to the eye, and that the handle was broken at that place. There was no testimony that it broke at the place where it was mended. As the master is not liable for latent defects of which he has no knowledge, and as there is no proof that defective mending caused the break, there is no element of liability in the plaintiff’s case, and the defendants’ eighth point should have been affirmed.

Judgment reversed.