#### Margaret E. Cregan, Resp’t, *v.*William H. Marston *et al.,*App’lts.1

*(Court of Appeals,*

*Filed June 2, 1891.)*

1. Master and servant—Duty of master to supply proper tools.

Plaintiff's intestate was killed while loading coal into buckets to be raised by a derrick, t?y the breaking of a rope which allowed the bucket to fall upon him. The -lengths of rope used’were called “ falls,” and would last from fourteen to twenty days. Defendants kept a large number on hand. Usually the engineer or his assistant made the application but anyone could give the notice and get the new “ fall.” The engineer had examined it a day or two before and deemed it safe. The court charged that it was the duty of the master to the servants to watch the use of the rope by them and its changes and condition; that the engineer was his agent and deputy for such purpose, and his negligence, if it existed, that of the master. *Held,*error.

2. Same.

While it is the master’s duty to keep a machine or appliance in order, and he cannot delegate the duty to another, it is not the master’s duty to repair defects arising in the daily use of the appliance, for which proper and suitable materials are supplied, and which may easily be remedied by the workmen, and are not of a permanent character or requiring the help of skilled mechanics.

Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff entered upon verdict

*E. Louis Lowe,*for app’lts; *Chas. J.*Patterson, for resp’t.

1

 Reversing 32 N. Y. State Rep., 913.

Finch, J.

The plaintiff’s intestate was killed while loading coal into buckets which were raised from the hold of a vessel by the aid of a derrick. The rope used for that purpose, and which lifted the loads to the control of the gaff, suddenly parted and the falling mass crushed the deceased, who died almost immediately from his injuries. There is no question of contributory negligence in the case, and not the least doubt that the defendants did their full duty so far as it consisted in the selection and sup-. ply of the rope used.

The controversy is thus narrowed by the facts to the single inquiry whose duty it was to observe and examine the condition of the rope and change it when so worn that it became unsafe. The lengths of rope used in the derrick were called “ falls.” The ordinary limit of safety in their use was proved to have been from fourteen to twenty days; rarely less than that and sometimes considerably more. Everybody connected with the business knew the consequences of excessive use and the necessity of frequent changes of the falls, but at varying and uncertain periods of time. The fall which was sound and safe in the beginning of a morning’s work might become frayed and dangerous, before night, and if it did would become so before the eyes of all the workmen dependent upon it for its use. And that is true, because the proof given by the plaintiff shows clearly that the rope which is sound originally becomes pulpy internally only when use has first affected it externally.

Now, it is conceded that the defendants kept on hand and *429ready for use at any moment an adequate supply of these falls and of the best and most approved character. After purchasing .a coil of rope measuring about one thousand feet in length it was at once cut up into falls, the ends were tied to keep them from unravelling, each fall was marked with a tag stating its length, and they were then hung up in a dry store room under lock and key and so kept ready for immediate use and meantime protected from the weather or from injury. If one was wanted word was sent to the office and the new fall at once supplied for use at the dock. Usually the engineer or his assistant made the application, but anybody engaged in the work could give the notice and get the new fall

It does not appear that any such application coming from any of the workmen was ever unheeded or refused. The workmen, therefore, were left in a position of perfect safety as to the sufficiency of the falls against everything save their own negligence or error of judgment The rope was swinging before their eyes, and would disclose its approaching weakness on the surface before it became rotten or pulpy within, and they were able to know how long it had been used, and so whether prudence required it to be changed. They were at liberty, and knew they were at liberty, to supplant one which exhibited marks of weakness with another both new and sufficient from the supply kept on hand. They were in the daily habit of observing its condition, and it was specially the custom of the engineer to do so. He had examined it a day or two before the accident, and deemed it safe.

On this state of facts the court charged that it was the duty of the master to the servants to watch the use of the rope by them and its changes of condition; that the engineer was his agent and deputy for such purpose, and that the negligence of the engineer, if it existed, was that of the master. The doctrine at once renders unexplainable all the line of cases in which some defect in a machine has occurred from its use ,and the master has been held freed from responsibility if the machine furnished was originally safe, and he neither knew, nor ought to have known, of the exist•ence of the defect, for it puts the duty of daily.watch and discov- • ery on him, and so requires no notice or complaint or lapse of time to put him in default.

I think the doctrine asserted, was an extension of the master’s duty beyond its natural and proper limits. Probably the existing rule was founded upon the truth that certain things essential to the safety of the servants must necessarily, in the management of the business, emanate from the master and remain in his absolute control, and so the servants should not be responsible to one .another for defects which they could not repair for lack both of authority and means. The servant cannot furnish the machines. That is the master’s right and duty. But the servant who uses them can and should keep them in order for their proper and safe daily use when furnished with the necessary means of so doing,, .and when perfect! v capable of correcting the defect

It is undoubtedly true, as we have often said, that it is the duty', of the master to keep a machine or appliance in order, and that he *430cannot delegate the duty so as to escape responsibility. But that is a general rule and has its qualifications and limitations. One of those is that it is not the master’s duty to repair defects arising in the daily use of the appliance, for which proper and suitable materials are supplied, and which may easily be remedied by the workmen, and are not of a permanent character, or requiring the help of skilled mechanics. An apt illustration will be found in the case of *McGee*v. *Boston Cordage Co.,*139 Mass., 445. The machine was used for the passage of hemp over heckle pins.. These sometimes became bent so that the fibre clogged, and then the machine was stopped and the workman drove out the bent pin and inserted a new one from a supply furnished by the master for that purpose. The change was held to' be, not the duty of the master, but that of the servants, and an ordinary detail of their daily duty. It would have been almost absurd to have held otherwise. So in *Webber*v. *Piper,*,109 N. Y., 496; 16 N. Y. State Rep., 423, the master had supplied the means of sharpening saws which had become dull, and duplicate saws to take their place when removed, and had assigned the duty of removal to-one of his servants whose neglect, which resulted in an injury, was held to be that of a fellow servant The same doctrine was-declared in *Johnson*v. *Towboat Co.,*135 Mass., 209, a case almost: exactly like the one before us, and in which the injury resulted from the use by the servants of an unsound rope instead of substituting a new one which the master had supplied. In that case it was said that the master “having provided sufficient appliances, a part of which required occasional renewal from the wear and tear of the use for which it was intended and provided sufficient means for such renewal, and employed Moore to have the-superintendence of the workmen and the apparatus and appliances, the use of the means provided for keeping the tackle in-suitable condition was as truly a part of Moore’s duty as servant, as was the use of the apparatus for the direct purpose of the business, and in performing that duty he was a fellow servant with the plaintiff”

The doctrine thus declared was not at all repudiated or even modified by the later case of *Daley*v. *The Boston & Albany R. Co.,*147 Mass., 101, upon which the general term rely. In that, case, the operatives who managed the machine had no duty or responsibility as to a change of the ropes, but were dependent upon the judgment and consent of two other employees, who were not claimed to be fellow servants of the workmen. And that-case draws clearly the distinctions between an original defect in the rope provided and one occurring from its use, and between the duty of ordinary repairs devolving upon the servants and those of a permanent or special character which attach to the-master. What was said as to the custody of the ropes had some force in that case, but has no application to the one before us. Here there does not appear to have been at the dock any suitable place for keeping the spare falls, and it was neither negligence nor imprudence to put them under cover or protect them. *431by a lock, so long as they were at all times subject to the needs or requirements of the workmen.

The cases cited and their doctrine appear to be founded upon what is determined to be the implied contract relation between the master and servant. Their mutual duties grow out of that relation, and change and vary as it is changed or varied by the facts which indicate and measure it Where those facts show that in the understanding of both parties a class of ordinary repairs are to be made by the servants with materials furnished by the master for that express purpose; that they and he regard it as a detail of their own work; that it is something entirely within their capacity and not dependent upon the skill of a special expert, and that the necessity springs from their daily use of the appliance, occurs at different and unknown periods in their service, and is open to their observation in the absence of the master, the inference is inevitable that the contract relation between the parties makes it a duty of the servants and a detail of their work to correct the defect when it arises with the materials furnished.

The cases cited by the respondent do not touch the question. In one the defect was in an engine, which only an' expert could, repair and for which the servant was furnished with no materials., *Fuller*v. *Jewett,*80 N. Y., 50. In one the chain of an elevator: had grown thin and no new one was supplied. *Corcoran*v. *Holbrook,*59 N. Y., 518. In two the cars or the platform were defective when supplied by the master. *Gottlieb*v. *N. Y., L. E. & W. R. R.,*100 N. Y., 462; *Benzing*v. *Steinway,*101 id,, 547. And in one the master permitted the use of a rope which was rotten from a year’s exposure to the weather and without supplying a new one. *Baker*v. *Allegheny V. R. R. Co.,*95 Pa., 211. In *Cone v. D., L. & W. R. R.,*81 N. Y., 206, the defect was in the engine, which the servants using it could not be required or expected to repair, and in *Murray*v. *Usher,*117 N. Y., 543; 27 N. Y. State Rep., 928, the platform fell from an original defect in construction.

In the present case the master exercised all the reasonable care required. The rope had not been in use so long as to charge the master with knowledge that it had become unsafe, and he had a right tuo assume that the servants would take no needless risks. 43o far even as the engineer is concerned there seems to have been on his part an error of judgmen^, but not necessarily any negli.gence in the performance of his duty.

The judgment should be reversed and a new trial granted, with costs to abide the event.

All concur.