#### Edward Van Ness, Respondent, *v.*General Electric Company, Appellant.

Third Department,

May 6, 1914.

Master and servant—negligence — injury caused by defective ratchet in chain hoist — Labor Law, section 200 — hidden defect — evidence justifying recovery.

Where a servant sues his master under subdivision 1 of section 200 of the Labor Law to recover for personal injuries caused by the fact that the ratchet wheel in a chain hoist furnished by the defendant, and used by the plaintiff, was defective in that several teeth were worn down below the level of adjacent teeth because that portion of the casting was full of blow holes and softer than other portions, a verdict for the plaintiff will be affirmed, although the chain hoist was one of standard make and in common use and the ratchet wheel itself was covered so that the master could not have inspected it without taking the mechanism apart, and the manufacturer, not the master, was responsible for the defect.

Smith, P. J., dissented.

Appeal by the defendant, General Electric Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schenectady on the 23d day of June, 1913, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on *230the 30th day of June, 1913, denying the defendant’s motion for a new trial made upon the minutes.

*James O. Carr [Daniel Naylon, Jr.,*of counsel], for the appellant.

*Edgar T. Brackett [William E. Bennett*and *James J. Barry*of counsel], for the respondent.

Woodward, J.:

The plaintiff entered the employ of the defendant on the 22d day of June, 1912, and on the 9th day of July of the same year was injured in an accident while discharging his duties. The details of the accident are not important to be set out. It was necessary to make use of a chain hoist, a mechanical contrivance operated by chains running over pulleys, in repairing a machine upon which the plaintiff had been at work. The plaintiff, with one Davis, while making use of this chain hoist, was injured seriously, and the jury has found a very substantial verdict in his favor. This chain hoist is designed to lift a load of half a ton, and it was, at the time of the accident, used in lifting a weight of 910 pounds, a point well within the safety limit of the apparatus if in good order, and the plaintiff’s theory of the case is that the ratchet wheel was defective, four of the teeth being worn down about one-eighth of an inch lower than those adjacent to them, and that these defective teeth permitted the dog or pawl to slip over and thus caused the weight which was being lifted to fall upon him, producing his injuries.

There can he no doubt that the ratchet wheel was defective; the exhibit in evidence discloses the fact, and it is plain that this defect was produced by the wear upon a portion of the wheel which was full of blowholes, and manifestly much softer than the remaining portion. The jury has found in favor of the plaintiff’s theory, that the proximate cause of this accident was the defect in this ratchet wheel governing in a measure the action of the hoisting pulleys, rather than a slipping of the hooks upon the rope which was fastened around the object being hoisted, and the only serious question presented to our mind is whether the defendant can be charged with negligence *231in not discovering this defective ratchet wheel and guarding against this accident. This chain hoist was one of many of a similar kind used by the defendant, and manufacturers generally engaged in like work, and consists of pulleys and chains with a ratchet wheel to hold the load at any given point, and the evidence in this case is that the load had remained suspended for a period of fifteen minutes to a half hour, and that when the plaintiff pulled upon the proper chain to lower the load the chain was drawn violently from his hand and the load fell upon him. Just how it could happen that this ratchet wheel would let go and permit the load to fall is not disclosed by the evidence; the testimony is not disputed that the ratchet wheel is not involved in the lowering of the load by the pulling of the proper chain, and the weight of the evidence would seem to be in favor of the proposition that the dog or pawl could not be removed from the ratchet in which it was engaged while the load remained suspended without prying it out. Of course it might be that the ratchet was so rounded by the wear that the dog or pawl would slide out upon the load being swayed from a perpendicular line, and this seems to be the theory of the case accepted by the jury. At any rate the jury has found in favor of the plaintiff, and we are not prepared to say that there is not evidence in the case to support the verdict, if it be assumed that it was the duty of the master to have discovered this defect in the hoisting apparatus. It must be conceded, we think, that this is holding the master to a high degree of responsibility. The chain hoist is an apparatus in common use; it is not disputed that this particular hoist was of standard make, and the evidence discloses that this ratchet wheel, with its following dog or pawl, was encased so that it was impossible to discover any defect in the wheel without taking off the covering and going into the inside of its mechanism. It seems to be conceded that none of the witnesses had ever known of a similar case; the construction was such that it was not designed that any one should be looking into it; there was little reason to anticipate that the ratchet wheel would wear out more at one point than another, and it is very evident if the materials used by the manufacturer had not been defective that this would not have been the case. This is not a case of fine mechanical *232adjustment; the ratchet wheel is four and one-half inches in diameter, a quarter of an inch in thickness, and is designed to fit on over a shaft two inches in diameter or more, and in the ordinary course of events would last as long as any other part of the apparatus. It was only because of a defect in the material itself, and which was guarded from view by the casing in which it was inclosed that the peculiar wear which was disclosed after the accident would be possible, and to hold the defendant responsible for this accident is to say that it is the duty of the master to tear down and look into all of the parts of a device which he has purchased of a standard maker in order to discharge the duty of inspection. Such liability did not exist at common law, hut the language of subdivision 1 of section 200 of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], as amd. by Laws of 1910, chap. 352) may he construed as enlarging upon the liability of the master in this regard, and so we acquiesce in the rulings of the trial court, and conclude that the verdict must stand.

The judgment and order appealed from should be affirmed, with costs.

All concurred, except Smith, P. J., dissenting.

Judgment and order affirmed, with costs.