#### Michael L. Smith, Respondent, *v.*The Long Island Railroad Company, Appellant.

Second Department,

December 30, 1908.

Master and servant — negligence—-superintendence—-safe tools — practice — motion to dismiss — reservation of decision — exception unnecessary.

The plaintiff was employed by the defendant to remove the covers of manholes, perform work in the conduits and replace the covers. Having, left his regular tools behind, the superintendent directed him to go to a neighboring flagman’s station and get tools with which to work. Plaintiff procured two iron pokers for the work and with them he and his helper successfully removed one cover and replaced it. A second cover was also removed with the pokers and in attempting to replace it by hand it fell upon plaintiff's foot. It did not appear that the superintendent told plaintiff to take any particular kind of tools or that the pokers were not, in fact, reasonably safe tools for this work. The accident occurred only when plaintiff sought to replace the cover without the use of tools. *Held,*that there was no evidence that the master was negligent.

*428Where a party moves to dismiss a complaint or to set aside a verdict and the trial judge reserves decision, it is not necessary for the moving party to except to the reservation of decision or to the ruling when subsequently made in order to bring up fur review all questions raised by the motion.

Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 30th day of March, 1908, upon the verdict of a jury for $1,700, and also from an order entered in said clerk’s office on the 6th day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes.

*Matthew J. Keany [Joseph F. Keany*with him on the brief] for the appellant.

*William E. Weaver,*for the respondent.

Woodward, J.:

The plaintiff in this action was employed as a cable splicer for the telephone department of the defendant, and it appears to have been his duty, with a helper named O’Carr, to remove the covers of manholes and to perform work in the conduits, and then to replace such covers. They had been working under the direction of one Brannigan, who will be assumed for the purposes of this appeal to have occupied the position of a superintendent within the provisions of the Employers’ Liability Act, along thp Atlantic division of the defendant’s railroad, and had been supplied with implements which are referred to as hooks for the purpose of handling these covers. - On the day of the accident complained of the plaintiff and O’Garr reported to Brannigan, who directed them to go to Euclid avenue to manholes Nos. 5 and 6, and to open the same and determine whether the gas which was escaping from these manholes was natural gas or sewer gas. These manhole covers appear to be of cast iron, about two and one-half to three inches in thickness and about two feet square, perforated with holes, and weighing between two and three hundred pounds. At this time the plaintiff told Brannigan that he had left his tools at Nostrand avenue, a point upon the same line, about two miles away, and that he thought he ought to go and get them. To this Brannigan replied that it was not necessary; that he could go into the flag*429man’s station near the place on Euclid avenue and find something to do the work with, as there were only two of the manholes to open. The plaintiff thereupon went to the point indicated, with his helper, found two old pokers, and proceeded with the work. The cover of the first manhole was lifted and replaced without accident. The second cover was likewise lifted, the examination was made, and the plaintiff with the helper turned the cover up on its edge, using their hands for the work, and were working it along to a point where they could let it fall down into place, when the helper’s foot slipped on a pebble and the cover turned over on the plaintiff’s foot, causing injury. It seems that the manhole at this particular point was slightly below the general surface, in a cup-shaped basin, and was not as well adapted for receiving the cover as the former one; and the alleged negligence consists in the fact that the defendant’s so-called superintendent had directed the plaintiff to find something to do the work with at the flagman’s station, instead of permitting him to go two miles for the purpose of getting his regular hooks. There is not a word of evidence that this alleged superintendent told the plaintiff to take any particular kind of tools, or that the tools which the plaintiff did take had any defects. The evidence is that the old pokers served the purpose of removing the covers, obviously the most difficult part of the work, and, so far as the evidence goes, it does not show that these pokers may not have been reasonably, adapted, or that they were not in fact reasonably safe tools for the performance of this particular work. The hooks described by the plaintiff were merely iron bars with a hook at one end and a loop at the other, these hooks being designed to pass through the holes in the manhole covers, and the loop at the end being for the purpose of permitting a stronger lifting hold. It does not appear that these pokers did not have a hook at the end, or that they could not have been used in substantially the same manner as the regular hooks. But, whether or not this is so, the evidence is that the plaintiff and his helper were not attempting to use these pokers. They were merely engaged in handling a piece of cast iron of the general dimensions above noted, as simple a piece of work for two men as could be well imagined, and where it was entirely obvious that if it fell it would be likely to crush anything under it. The dangers *430were obvious to them; they knew the danger just as well as any master could have told them, and if they chose to go on with the work, clearly no one was responsible for the injury except the two men who were engaged in the work. If Branuigan had told the plaintiff to go to the flagman’s and take a broomstick to perform this work, and the plaintiff had been ignorant of the strength of the broomstick, and it had broken in the performance of the work, and injury had resulted, there might be some shadow of justice in the case; but when we reflect that what Branuigan directed was merely to go there and find something to do the work with, leaving it to the plaintiff to determine what he should make use of, and when it appears that the implements found and used did prove reasonably safe and adequate for the performance of the work, and that the accident happened only -when the plaintiff and his helper sought to replace the cover without the use of any implements other than their hands, and such as most men would naturally adopt as the most feasible way of performing the work, the whole case is barren of any foundation of negligence of any duty which the master owed to the plaintiff. There is no allegation that the plaintiff was not afforded a reasonably safe place in which to do this work ; no suggestion that he was not furnished with reasonably competent help, or that the tools actually used were not reasonably safe for the work which was done with them. The master is not bound to provide tools and implements which make accidents impossible; he has performed his duty when he has supplied reasonably safe tools and appliances, and in the performance of a simple task, like replacing the top of a manhole, it is doubtful if the master owed the duty of furnishing any tools; able-bodied men, with hands and ordinary intelligence, would not hesitate long to assume the work of lifting a piece of iron of the weight and dimensions stated and placing it in position, and if the truth were known it is doubtless true that if the plaintiff had had his hooks with him he would have performed this part of the work just as 'he did. At any rate, there is no possible negligence shown in the discharge of any duty which the master owed to the plaintiff.

But it is urged by the respondent that the defendant is not entitled to raise this question here. At the close of the case defendant renewed its motion to dismiss the complaint on the grounds *431that the plaintiff had failed to show negligence on the part of the defendant, or absence of contributory negligence. On this motion the court reserved decision. The defendant took no exception to this reservation of decision and the case was sent to the jury. On the jury coming in with a verdict for the plaintiff defendant moved to set aside the verdict and for a new trial on the minutes, on the grounds set forth in section 999 of the Code of Civil Procedure, and on this motion the court also reserved decision. No objection or exception to this was made, and subsequently the court denied the motion, the defendant appealing from that order, as well as from the judgment.

There has been some confusion upon the subject, growing out of the rule enunciated by the Court of Appeals, which is confined to the review of questions of law; but we are of the opinion that where the defendant duly moves to set aside the verdict under the provisions of the Code of Civil Procedure he is not deemed to have waived his rights by not objecting and taking an exception to the court’s action in reserving decision. Section 999 of the Code of Civil Procedure clearly contemplates that the decision need not be made at once ; the language is that the “judge presiding at a trial by a jury may, in his discretion, entertain a motion made upon his minutes at the same term,” etc. He may entertain the motion, and the very character of the motion, to review the case upon the court’s own rulings, indicates a purpose on the part of the Legislature to permit deliberation, and the declaration of the court that it reserves decision is entirely in harmony wdth the purposes of the statute. There is nothing to complain of until the court has passed upon the motion. It may be in favor of the moving party. The section recognizes the right to appeal from the order, not from the ruling on the motion, and the right to appeal from the order is a right to review all of the questions'raised by the motion, which, in this case, reaches the question of law whether upon all the facts which the jury might find under the evidence the defendant is liable. It has been held in many cases of high authority that this court, as distinguished from the Court of Appeals, might review questions going to the vital substance of a fair trial without exception. Thus it was said in the case of *Hamilton*v. *Third Avenue R. R. Co.*(53 N. Y. 25, 27) that the General Term, upon the *432appeal from, the order of the Special Term, “ had the power, and it was the duty of each to examine and determine whether the verdict was against the weight of evidence and the justice of the case, and if of opinion that it was, to set it aside and order a new trial. The further duty was incumbent upon them to examine whether upon the trial the defendant sustained any injury from the jury having been misled by any improper remarks of the judge during the trial which were not excepted to or not the proper subject of an exception.” - (See *Whittaker*v. *D. & H. Canal Co.,*49 Hun, 400, 405, and authorities there cited; *Gillett*v. *Trustees of Kinderhook,*77 id. 604, 605, and authorities there cited ; *McGrath*v. *Home Insurance Co.,*88 App. Div. 153, 157, and authorities there cited.)

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

Jenks, Rich and Miller, JJ., concurred ; Gaynor, J., concurred in separate memorandum.

Gaynor, J. (concurring):

I do not find that the respondent makes any question that a trial Judge may reserve decision on the motion for a new trial on the minutes, or that the moving party waives any right by failing to except to his doing so. Ho such absurdity was ever heard of. The objection of the respondent is that the motion of the defendant for a dismissal at the close having been reserved by the trial Judge until after verdict, there is in the record no exception to the denial of that motion, which did not occur until after verdict. The appellant omitted to file such exception, as it had the right to do. I concur in the opinion on the main question, and also that the order denying the motion on the minutes for a new trial brings up to this court, though not to the Court of Appeals, the question of whether there was any evidence on which to go to the jury, as well as the weight of evidence, and all errors of law, provided the motion be made on such ground or grounds. This is made so plain by section 999 of the Code itself, that citation of authority for it must rarely be necessary *(Brennan*v. *City of New York,*123 App. Div. 7).

Judgment and order reversed and new trial granted, costs to abide the event.