#### Verne Marion, Respondent, *v.*B. G. Coon Construction Company, Appellant.

Third Department,

May 7, 1913.

Master and servant—negligence — signalman struck by hoom of derrick— pleading — allegations available under the statute and under common law — election of remedies — erroneous ruling corrected in charge — evidence — X-ray pictures—Labor Law, section 18.

Where in an action to recover for personal injuries sustained by the plaintiff, who'was struck by the boom while signaling the engineer controlling the operation of a derrick, the plaintiff alleged and gave evidence tending to support four separate specifications of negligence, three of which were defects in the machinery and available under the statute, as well as under the common law, and the fourth, as to the hiring of a youthful, unskillful and incompetent engineer, not available under the statute, but a ground for action under the common law, a ruling by the court, on defendant’s motion to compel the plaintiff to elect between the common-law count and the count under the statute that the case was one under the statute and not under the common law, although equivalent to a nonsuit of the alleged cause of action under the common law and hence erroneous, was cured by the charge to the jury, in which the court submitted the question of whether the defendant was negligent in hiring the engineer, and a judgment for the plaintiff should be affirmed.

The plaintiff cannot avail himself of section 18 of the Labor Law.

X-ray pictures constitute an exception to the rule that an ordinary photograph is the best evidence of what it contains.

Smith, P. J., dissented.

*96Appeal by the defendant, the B. Gr. Coon Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county, of Tompkins on the 14th day of December, 1911, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 11th day of January, 1912, denying the defendant’s motion for a new trial made upon the minutes.

*Tompkins, Cobb & Cobb [Howard Cobb*of counsel], for the appellant.

*Willard M. Kent,*for the respondent.

Howard, J.:

The defendant was a contractor building a dam across Six Mile creek near the city of Ithaca. On one side of the creek it had erected a derrick used to raise and lower materials; on the other side it had stationed an engine used to operate the derrick. When the boom, a timber forty-six feet long which is a part of the derrick apparatus, was down horizontal, the cable which operated it was unwound so that only three or four wraps remained around the drum. The cable was not fastened to the drum for the purpose of holding it, but only to keep it from whipping. Friction was depended upon to hold the cable. There is a hole through the foot of the boom, and a hole through the flanges of an iron foot block of the derrick, so that an iron pin can be placed through these holes, thus fastening the boom to the derrick. At the time of the accident the boom was being operated without being pinned to the foot block. It was the duty of the plaintiff among other work on this occasion to stand part way down in the ravine and give signals to the engineer who operated the engine. The engineer was a young man, nineteen years old, of good intelligence, but a common laborer up to a few days before the accident, with no previous experience before the job in question in operating engines, and having received only indifferent instructions as to the operation of that particular engine. The plaintiff at first signaled the engineer to lower the boom; the engineer did so, lowering it to within a foot or so of position. Then the plaintiff signaled for the load line to be lowered, but the engineer thinking that the boom *97should be lowered a little before the load line was lowered, attempted to do so by operating a foot brake. In attempting to do this, either because he released the brake too much, or for some other reason which the engineer does not very well explain, the boom got away from him, the cable all ran off the drum, and the boom fell upon the plaintiff and injured him.

The plaintiff alleged and gave evidence tending to support four separate specifications of negligence; four separate grounds of liability:

> 1. That there was no pin fastening the boom to the derrick;

> *2.*That there were not enough wraps of the‘cable around the drum to hold the cable from slipping;

> 3. That the cable was not properly fastened to the drum;

> 4. The hiring of a youthful, unskillful, inexperienced, incompetent engineer.

The first three being defects in the machinery, are allegations available under the statute as well as under the common law; the fourth allegation does not come within statute; all four of these allegations, however, state grounds for a cause of action under the common law.

The court in response to defendant’s motion to compel the plaintiff to elect in going to the jury between the common-law count and the Labor Law count, said: *“*I will rule that this is a case under the statute and is not one under the common law.” This ruling seems to have been equivalent to a nonsuit of the alleged cause of action under the common law. If so, it was erroneous, for, as we have seen, each of the four allegations of negligence was available to the plaintiff under the common law. If it was particularly directed against the allegation that the defendant was negligent because it had hired an incompetent engineer, the ruling was also erroneous for the proof presented facts for the consideration of the jury under that common-law allegation. The court later on, however, ignored this ruling, apparently, and in his charge submitted the case to the jury on the question of whether the defendant was negligent in hiring Davis, an alleged unskillful, inexperienced, incompetent man. If this court considers that the previous ruling may be thus cured, that is cured in effect *98without a formal revocation, then the cure was in fact effected for the charge proceeded as- though the common-law count as to the engineer was yet intact. I think it should be held that the error was cured for two reasons: *First,*because I doubt that the court intended his ruling to amount to a nonsuit; *second,*because, if he did, it having been subsequently rectified by his charge to the jury, we should treat his failure to formally change his ruling as a technical, rather than a substantial, omission and ignore it under section 1317 of the Code. Under the Labor Law the failure to furnish safe machinery is negligence; under the common law the failure to hire a competent engineer is negligence. If the plaintiff proves them both as contributing reasons for the accident, assuming of course his freedom from contributory negligence, that gives him a cause of action — one cause of action. *(Payne*v. *N. Y., S. & W. R. R. Co.,*201 N. Y. 436.) If he proves either that would give him a cause of action, but he was entitled to have both grounds submitted to the jury, for they might believe the one and reject the other. They might reject the contention of defective appliances, think it not proven, and adopt the assertion of negligence in hiring an incompetent engineer, think it well established by the evidence. Any grounds of negligence which were presented to the court by the pleadings and the proof, whether under the common law or the statute law, should have been submitted to the jury. This point, therefore, the one most vigorously urged by the defendant, that the question of the negligence of the defendant so far as it relates to the hiring of the engineer, should not have been submitted to the jury, is not well taken and should be resolved in favor of the plaintiff.

It is strongly urged that the negligence of Davis, a fellow-servant, in operating the engine was the proximate cause, and indeed the only cause of this accident. If his negligence was the cause then the plaintiff camlot recover; but whether the accident was caused by a defect in the machinery of the defendant (the alleged short cable, insufficient number of wraps, failure to pin fast the boom) or by the negligence of Davis, was an issue of fact for the jury to determine. The evidence is sufficient to support their verdict on this question and there is no occasion to interfere with it.

*99Another point urged by the appellant—the one concerning the X-ray pictures — will upon examination, I believe, be found to be without merit. A careful reading of all the medical evidence and the other evidence as to injuries will show that the plaintiff was substantially injured. One of the plaintiff’s witnesses, Dr. Gardner, swears: “I was present when the [X-ray] pictures were taken, saw them taken, saw them developed and looked at the plates immediately after they were developed. ” Thus their identity and correctness were established. Then the doctor proceeds to tell what the pictures show. Another physician, Dr. Tinker, also tells what he thinks the plates show. There was no demand made by the defendant for the production of the plates; no hint or suggestion that they were desired. They were, in fact, in court, so the plaintiff states in his brief. I can see no error at all in this X-ray incident. The evidence shows that nobody but an X-ray expert could tell anything from the plates, and that if they had been produced they would have done the court, jury or the defendant’s ordinary physicians no good. I do not think that the doctrine that an ordinary photograph is the best evidence of what it contains should be applied to X-ray pictures. They constitute an exception to the rule concerning ordinary documents and photographs, for the X-ray pictures are not, in fact, the best evidence to laymen of what they contain. Generally they are no evidence at all, signifying nothing whatever except to the expert. The opinion of the expert is the best evidence of what they contain — the only evidence. If there had been a demand for these pictures in court, or a request that they be submitted to the inspection of the opposing experts, and these rights had been denied the defendant, such an error would be serious. But whatever harm befell the defendant, if there was any harm at all, came to it by reason of its own failure to demand what it was entitled to, and what it would unquestionably have received by the mere asking. To sustain this contention of the defendant would be to tolerate worse than a technicality — a trick.

The plaintiff should nob be permitted to avail himself of section 18 of the Labor Law or recover upon that theory: *First,*because the law is not applicable to the facts proven, and also because the case was not tried or submitted to the jury upon *100the assumption that it came within the provisions of that section. (Hammond *v*. *Union Bag & Paper Co.,*136 App. Div. 100; *Mulligan*v. *McDonald,*135 id. 536.)

The judgment and order should be affirmed, with costs.

All concurred, Lyon, J., in result, except Smith, P. J., dissenting.

Judgment and order affirmed, with costs.