Creegan v. Marston

• Decision Date: 02 June 1891
• Parties: CREEGAN v. MARSTON et al.
• Court: New York Court of Appeals Court of Appeals

126 N.Y. 568

27 N.E. 952

CREEGAN

v.MARSTON et al.

Court of Appeals of New York.

June 2, 1891.

Appeal from supreme court, general term, second department.

E. Louis Lowe, for appellants.

Chas. J. Patterson, for respondent.

FINCH, J.

The plaintiff's in testate was killed while loading coal into buckets, which were raised from the hold of a vessel by the aid of a derrick. The rope used for that purpose, and which lifted the loads to the control of the gaff, suddenly parted, and the falling mass crushed the deceased, who died almost immediately from his injuries. There is no question of contributory negligence in the case, and not the least doubt that the defendants did their full duty, so far as it consisted in the selection and supply of the rope used. The controversy is thus narrowed by the facts to the single inquiry, whose duty was it to observe and examine the condition of the rope, and change it when os worn that it became unsafe. The lengths of rope used in the derrick were called ‘falls.’ The ordinary limit of safety in their use was proved to have been from 14 to 20 days; rarely less than that, and sometimes considerably more. Everybody connected with the business knew the consequences of excessive use, and the necessity of frequent changes of the falls, but at varying and uncertain periods of time. The fall, which was sound and safe in the beginning of a morning's work, might become frayed and dangerous before night, and, if it did, would become so before the eyes of all the workmen dependent upon it for its use; and that is true, because the proof given by the plaintiff shows clearly that the rope which is sound originally becomes pulpy internally only when use has first affected it externally. Now, it is conceded that the defendants kept on hand, and ready for use, at any moment, an adequate supply of these falls, and of the best and most approved character. After purchasing a coil of rope measuring about 1,000 feet in length, it was at once cut up into falls, the ends were tied to keep them from unraveling, each fall was marked with a tag stating its length, and they were then hung up in a dry storeroom, under lock and key, and so kept ready for immediate use, and meantime protected from the weather or from injury. If one was wanted, word was sent to the office, and the new fall at once supplied for use at the dock. Usually the engineer or his assistant made the application, but anybody engaged in the work could give the notice and get the new fall. It does not appear that any such application, coming from any of the workmen, was ever unheeded or refused. The workmen, therefore, were left in a position of perfect safety as to the sufficiency of the falls, against everything save their own negligence or error of judgment. The rope was swinging before their eyes, and would disclose its approaching weakness on the surface before it became rotten or pulpy within, and they were able to know how long it had been used, and so whether prudence required it to be changed. They were at liberty, and knew they were at liberty, to supplant one which exhibited marks of weakness with another, both new and sufficient, from the supply kept on hand. They were in the daily habit of observing its condition, and it was specially the custom of the engineer to do so. He had examined it a day or two before the accident, and deemed it safe.

On this state of facts, the court charged that it was the duty of the master to the servants to watch the use of the rope by them, and its changes of condition, that the engineer was his agent and deputy for such purposes; and that the negligence of the engineer, if it existed, was that of the master. The doctrine at once renders unexplainable all the line of cases in which some defect in a machine has ocurred from its use, and the master has been held free from responsibility if the machine furnished was originally safe, and he neither knew nor ought to have known of the existence of the defect; for it puts the duty of daily watch and discovery on him, and so requires no notice or complaint or lapse of time to put him in default . I think the doctrine asserted was an extension of the master's duty beyond its natural and proper limits. Probably the existing rule was founded upon the truth that certain things essential to the safety of the servants must necessarily, in the management of the business, emanate from the master, and remain in his absolute control, and so the servants should not be responsible to one another for defects which they could not repair for lack both of authority and means. The...