Paul v. Westinghouse, Church, Kerr & Co.

Appellate Division of the Supreme Court of New York

Paul v. Westinghouse, Church, Kerr & Co.

113 A.D. 515, 99 N.Y.S. 356, 1906 N.Y. App. Div. LEXIS 1474

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 8, 1906

StatusPublished

Cited by1 cases

This text of 113 A.D. 515 (Paul v. Westinghouse, Church, Kerr & Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Paul v. Westinghouse, Church, Kerr & Co., 113 A.D. 515, 99 N.Y.S. 356, 1906 N.Y. App. Div. LEXIS 1474 (N.Y. Ct. App. 1906).

Pincite

Opinion

Gaynor, J.:

Plaintiff and a fellow-workman were at work on the same anvil in the defendant’s blacksmith shop pointing a pick. The process [516]*516■ was "that after the pick, was heated the plaintiff pounded it with ' a sledge while his fellow held it' on the anvil and alternately hit it ^itk'a small'handhammer, and when the plaintiff ceased his fellow finished the pointing by continuing with his handhammer. A little piece chipped off the edge of the handhammer as it hit the anvil and flew into the plaintiff’s hand as he was putting down his sledge: The handhammer Was new, having been taken that day from the storeroom where numbers of like hammers were kept for use in the shop. They were of the kind; in general use in blaclc- . smith shops, and were purchased by the defendant in the market. Ho particular flaw or defect is assigned by the plaintiff to the hammer in question; he only claims that.all such hammers are liable to chip, and that therefore the defendant" furnished an unsafe tool. They ape made by the drop of a forge on a base or die, and in that way shaped by a couple of strokes instead of being handmade, and it is on that score that the plaintiff condemns them. Such was the ^ testimony of his expert, who exhibited a hammer made by himself by hand, and which he claimed would never"chip. He testified that the bar steel .had to be "heated too intensely to enable the hammer -to be made ip arstróke’ór two of the drop forge, and as a result the hammer was too brittle,

The hammer was of the kind in general use.. The defendant "was not required to furnish handmade hammers. They have been superseded by machine-made hammers, as is the case "-generally • with tools and implements. His duty was to furnish a reasonably safe hammer, as things go and are accepted", and he did so (Apati v. D., L. & W. R. R. Co., 64 App. Div. 515).

■ The judgment should be reversed.

Woodward, Jenks, Hooker and Rich, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, , posts to abide the event. .

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Gaynor, J.:

Plaintiff and a fellow-workman were at work on the same anvil in the defendant’s blacksmith shop pointing a pick. The process [516]*516■ was "that after the pick, was heated the plaintiff pounded it with ' a sledge while his fellow held it' on the anvil and alternately hit it ^itk'a small'handhammer, and when the plaintiff ceased his fellow finished the pointing by continuing with his handhammer. A little piece chipped off the edge of the handhammer as it hit the anvil and flew into the plaintiff’s hand as he was putting down his sledge: The handhammer Was new, having been taken that day from the storeroom where numbers of like hammers were kept for use in the shop. They were of the kind; in general use in blaclc- . smith shops, and were purchased by the defendant in the market. Ho particular flaw or defect is assigned by the plaintiff to the hammer in question; he only claims that.all such hammers are liable to chip, and that therefore the defendant" furnished an unsafe tool. They ape made by the drop of a forge on a base or die, and in that way shaped by a couple of strokes instead of being handmade, and it is on that score that the plaintiff condemns them. Such was the ^ testimony of his expert, who exhibited a hammer made by himself by hand, and which he claimed would never"chip. He testified that the bar steel .had to be "heated too intensely to enable the hammer -to be made ip arstróke’ór two of the drop forge, and as a result the hammer was too brittle,

The hammer was of the kind in general use.. The defendant "was not required to furnish handmade hammers. They have been superseded by machine-made hammers, as is the case "-generally • with tools and implements. His duty was to furnish a reasonably safe hammer, as things go and are accepted", and he did so (Apati v. D., L. & W. R. R. Co., 64 App. Div. 515).

■ The judgment should be reversed.

Woodward, Jenks, Hooker and Rich, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, , posts to abide the event. .

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113 A.D. 515, 99 N.Y.S. 356, 1906 N.Y. App. Div. LEXIS 1474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paul-v-westinghouse-church-kerr-co-nyappdiv-1906.

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