Marsh v. Chickering

• Decision Date: 12 February 1886
• Parties: MARSH v. CHICKERING and another.
• Court: New York Court of Appeals Court of Appeals

101 N.Y. 396

5 N.E. 56

MARSH

v.CHICKERING and another.

Court of Appeals of New York.

Filed February 12, 1886.

MILLER, J.

The plaintiff seeks to recover in this action for injuries sustained, while in the defendants' employ, by means of a ladder used by him in lighting the bas-lamps connected with and in front of the defendants' building. The plaintiff had lighted seven of the eight lamps by the use of the ladder, and when in the act of lighting the eighth one the ladder slipped, and plaintiff's leg caught in one of the rungs, and that caused the injury. It was a stormy night in the month of March; sleeting and raining, snowing and windy. The plaintiff, previous to this occurrence, had used a ladder of the defendants which broke with him, and he had spoken to one of the defendants stating the accident, and saying that they ought to have a good ladder, hooked and spiked, or else there would be an accident. The defendant spoken to told him to go to the superintendent, and direct him to order a new ladder. This the plaintiff did, and he then went to a ladder yard, and ordered a new ladder himself, at the request of the superintendent, and after this ladder had been delivered he told the superintendent that it ought to be hooked and spiked, and the superintendent promised to have hooks and spikes put on it, but never did. The plaintiff used the ladder for six weeks or two months, and during that time he says he spoke to the superintendent twice about it; the second time three or four weeks before the accident, saying to him that the ladder was not hooked and spiked, and there would be an accident. The superintendent replied that he would have it fixed.

The right of the plaintiff to maintain this action is founded upon the negligence of the defendants in not furnishing a proper ladder for the use of the plaintiff in the work he was engaged to perform. It rests upon the principle that it is the duty of the master to the servant, and the implied contract between them, that the master shall furnish proper, perfect, and adequate machinery or other materials and appliances necessary for the proposed work. Laning v. New York Cent. Ry. Co., 49 N. Y. 521; Shear. & R. Neg. § 92. As a general rule, it is to be supposed that the master, who employs a servant, has a better and more comprehensive knowledge as to the machinery and materials to be used than the employe, who has claims upon his protection against the use of defective or improper materials or appliances while engaged in the performance of the service required of him. The rule stated, however, is not applicable in all cases; and where the servant has equal knowledge with the master as to the machinery used or the means employed in the performance of the work devolving upon him, and a full knowledge of existing defects, it does not necessarily follow that the master is liable for injuries sustained by reason of the use thereof. In considering the application of the rule just stated, due regard must be had to the limited knowledge of the employe as to the machinery and structure on which he is employed, and to his capacity and intelligence, and to the fact that the servant has a right to rely upon the master to protect him from danger and injury, and in selecting the agent from which it may arise. Powers v. New York, N. E. & W. R. Co., 98 N. Y. 280. In cases, however, where persons are employed in the performance of ordinary labor, in which no machinery is used, and no materials furnished, the use of which requires the exercise of great skill and care, it can scarcely be claimed that a defective instrument or tool furnished by the master, of which the employe has full knowledge and comprehension, can be regarded as making out a case of liability within the rule laid down. A common laborer who uses agricultural implements while at work upon a farm or in a garden, or one who is employed in any service not requiring great skill and judgment, and who uses the ordinary tools employed in such work, to which he is accustomed, and in regard to which he has perfect knowledge, can hardly be said to have a claim against his employer for engligence, if, in using a utensil which he knows to be defective, he is accidentally injured. It does not rest with the servant to say that the master has superior knowledge, and has thereby imposed upon him. He fully comprehended that the spade or the hoe or the ladder, or the...