Demato v. Hudson County Gas Co.

• Decision Date: 17 June 1907
• Citation: 74 N.J.L. 793,67 A. 28
• Parties: DEMATO v. HUDSON COUNTY GAS CO.
• Court: New Jersey Supreme Court

67 A. 28

74 N.J.L. 793

DEMATO

v. HUDSON COUNTY GAS CO.

Court of Errors and Appeals of New Jersey.

June 17, 1907.

(Syllabus by the Court.)

Error to Supreme Court

Action by Stephen Demato against the Hudson County Gas Company. Judgment of nonsuit, and plaintiff brings error. Affirmed.

Alex. Simpson, for plaintiff in error. William D. Edwards, for defendant in error.

SWAYZE, J. The plaintiff, a laborer in the employ of the defendant, was injured in the eye while striking a chisel with a hammer. He had just begun this work. The accident happened on Saturday. On Monday he was operated on, and he says a piece of steel was taken out of his eye. He never saw it, and did not know whether it was steel. The surgeon who performed the operation was not a witness. The claim of the plaintiff is that the head of the chisel was defective because it was scaly and battered by the continual beating of a hammer. The chisel was not produced, but was said to resemble one which was shown to the plaintiff on the trial.

The evidence is hardly sufficient to show that the plaintiff's injury was due to a piece of steel from the chisel, but we assume in his favor that there was enough proof of the fact to carry the case to the jury. There was, however, no evidence of negligence on the part of the defendant. The plaintiff's own expert witness testifies that the alleged bad condition of the chisel was not due to defect in the steel, but was necessary to the use of the implement; that there is a point when the defect should be discovered; that the men who had the best knowledge of that are the men who are using it; that it should be sent to the blacksmith to be dressed up; that chisels are constantly sent for that purpose when it is necessary. There is no evidence that the chisel when furnished to the men by the defendant was in improper condition.

It hardly needed the evidence of an expert to prove that the head of a chisel, which is constantly struck with a hammer, will in time deteriorate. Deterioration is the necessary result of the use for which it was intended. The duty of inspection and repair in such a case is incidental to the duty of the employés to use the tool in their common employment, and the master is not responsible to an employé for the failure of his fellow servants to perform that duty. Steamship Co. v. Ingebregsten, 57 N. J. Law, 400, 31 Atl. 619.¹ A recent case in this court illustrates the distinction between the failure of the master to furnish a...