#### William Toone, Respondent, *v.*The City of New York, Appellant.

First Department,

December 31, 1913.

Master and servant —negligence —injury to driver of sprinkling cart by breaking of step — evidence.

In an action by a driver in the employ of one who supplied the defendant with horses and drivers for sprinkling carts it appeared that when the plaintiff was mounting to his seat a step on the cart some seven feet above the ground broke; that the step had been manufactured by a reputable concern, and had been carefully inspected five months before the accident. Evidence examined, and *held,*insufficient to establish any neglect on the part of the defendant, and that the complaint should be dismissed.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of April, 1913, upon the verdict of a jury for $2,500, *831and also from an order entered in said clerk’s office on the 12th day of April, 1913, denying the defendant’s motion for a new trial made upon the minutes.

*Harry Crone,*for the appellant.

*Clifford H. Owen,*for the respondent.

Per Curiam:

Plaintiff was a driver in the general employ of a Mrs. Carney, who supplied the city with horses and drivers for sprinkling carts owned and operated by the city. Plaintiff was so acting as driver when injured. For several days before the accident plaintiff had driven similar carts. On the day in question when he reported for work the superintendent of the city’s yard designated the sprinkler in question for the plaintiff to take out. He had used the same sprinkler on the day previous and on the morning of the day of the accident, but when mounting to his seat on starting to work in the afternoon, a step on the cart, some seven feet above the ground, broke, throwing him to the ground and causing the injuries complained of. The step itself seems to have been a piece of malleable iron bent to a right angle, the upper part of which was bolted to the barrel of the cart, a type of step in common use. This particular step was manufactured by a reputable concern. The cart had been rebuilt and repainted in the city’s shop in January, 1911, some five months before the accident, and before it left the shop it was carefully inspected by the master foreman, who discovered nothing wrong.

Plaintiff produced a so-called expert witness, who testified that the naked iron at the point of fracture showed a flaw, but his testimony was quite contradictory. First, he swore that “there is nothing on the step to indicate there was a flaw before it was painted,” and that he could not tell whether a flaw existed before the step was painted, and in the next breath said that he thought the flaw could have been seen through the paint if the step had been closely examined. The plaintiff testified that he considered himself an expert in wagons and steps; that he had used this step twelve or fifteen times, observing nothing wrong, and thought the step safe until the *832accident. Whether the plaintiff is to be considered an employee of the city or as the servant of Mrs. Carney is immaterial, because in neither case did the evidence justify the finding that the defendant had omitted any duty owing to the plaintiff or that the accident was attributable to its negligence. It stands to reason that a master is not bound to the same degree of vigilance in the inspection of such a thing as the step of a cart as would be necessary in the case of an intrinsically dangerous piece of machinery, or any complicated or peculiar implement, a defect in which might result in injury. But whatever duty may have been owing to plaintiff in this respect was fully performed.

The judgment and order should be reversed, with costs, and the complaint dismissed, with costs.

Present — Ingraham, P. J., Clarke, Scott, Dowling and Hotchkiss, JJ.

Judgment and order reversed, with costs, and complaint dismissed, with costs. Order to be settled on notice.