#### Martin McGrath, Respondent, *against*William J. Walsh *et al.,*Appellants.

(Decided April 1st, 1889).

Plaintiff, while in defendants’ employ as a hod-carrier, was injured by a fall caused by the rung of a ladder turning under his foot. For a day and a half prior to the accident, as well as for a longer time previous thereto, he had many times ascended and descended such ladder while going about his work. *Held,*that defendants were not liable; if the defect in the ladder was apparent, plaintiff should have discovered it; if it could not have been discovered by inspection, defendants were not guilty of negligence.

Appeal from a judgment of this court entered upon the verdict of a jury and from an order denying a motion for a new trial.

The facts are stated in the opinion,

*Daniel P. Mahony,*for appellants.

*Smith & White,*for respondent.

Larremore, Ch. J.

The defendants were engaged in erecting a building in One hundred and twenty-fifth Street, in the City of New York, and plaintiff was there employed by them as a hod-carrier. On the 20th day of May, 1887, he was ordered by the foreman to carry to one of the upper floors of such uncompleted building a pail of water for use in tempering mortar. He started to ascend a ladder provided and erected by defendants for the use of their employes, having the pail of water in one hand, and he alleges that, when near the' top thereof, a rung of said ladder upon which he stepped turned under his foot, whereby he was precipitated to the cellar, sustaining great and incurable injury. His claim for damages is founded upon the. allegation that defendants furnished a defective ladder.

*211It is said by Ruger, Ch. J., in *Cahill*v. Hilton (106 N. Y. 512), that: “ A ladder, like a spade or hoe, is an implement of simple structure, presenting no complicated question of power, motion, or construction, and intelligible in all of its parts to the dullest intellect. No reason can be pereei ved why the plaintiff, brought into daily contact with the tools used by him, as he was, should not be held chargeable equally with the defendants, with knowledge of their imperfections.”

It appears that the plaintiff in the case at bar, for a day and a half immediately before the accident, as well as for a longer period previous to such time, was working upon said house in One hundred and twenty-fifth Street, and ascending and descending this identical ladder. He testifies: “ The last time I was working previous to this unlucky day and a half, there was a ladder there. I went up and down the ladder. It was the same ladder from which I fell. It was a two-story ladder. I was accustomed to go up and down that ladder many and many a time before. My trips up and down that ladder would average twenty times an hour. ... I never felt anything the matter of the ladder before this happened.”

The effect of this testimony is certainly to establish either that there was no original defect in the ladder discoverable upon inspection, or that, if such defect existed, plaintiff elected to go on working upon it with knowledge thereof. Taking either horn of this dilemma, I think the defendants were entitled to judgment. If there was any patent defect, the rule laid down in *Cahill*v. *Hilton (supra),*makes it incumbent upon the servant, equally as upon the master, to examine the ladder and discover the same; and failure to make such examination and discovery on the servant’s part would therefore be contributory negligence. If, on the other hand, the alleged defect in the construction of the ladder was an occult one, which could not have been discovered by inspection, the master was not guilty of negligence. A master is not a guarantor or insurer of the absolute safety of tools or appliances; he is only bound to exercise reasonable *212care in their selection *(Painton*v. *N. C. R. Co.,*83 N. Y. 7; *Lee*v. *Barrow Steamship Co.,*6 N. Y. St. Rep. 285).

According to the testimony of plaintiff's witnesses and of some of the witnesses for the defense, two or three of the rungs of said ladder were loose at the time of the accident. If this were the fact, plaintiff was clearly negligent in continuing the use of the ladder after he had discovered that such rungs would turn. He must have made such discovery in his use thereof of a day and a half immediately before the accident, unless the looseness came about suddenly from some hidden cause and without any previous warning. And, in this latter event, no- negligence could be imputed to the defendants, as it nowhere appears -that they were careless in the original purchase and selection of the ladder.

It follows that, in any view of the evidence, the complaint should have been dismissed, and the judgment must be reversed and a new trial ordered, with costs to abide the event.

Van Hoesen, J., concurred.

Judgment reversed and new trial ordered, with costs to abide event.