La Rocca v. Farrington , 301 N.Y. 247 ( 1950 )

Per Curiam.

On the facts of this case — which are sufficiently stated in the dissenting opinion filed herewith — it was error for the trial court to set aside the jury verdict in favor of the plaintiff and dismiss his complaint. We agree that the Appellate Division quite properly reinstated the verdict against the defendants-appellants, the Turner and Farrington companies, on the authority of MacPherson v. Buick Motor Co. (217 N. Y. 382). The uncontradicted testimony of the expert that the crack in the fracture face of the link that broke had existed for at least two years and its existence was reasonably discoverable by visual inspection, established, prima facie, that use of the crane was imminently dangerous to any person in the vicinity of its boom (cf. Adams v. White Constr. Co., 299 N. Y. 641). The principle of the MacPherson case (supra) is ho longer limited to manufacturers but has been extended to “ suppliers ”as well, a designation which also covers owners and lessors (see Restatement, Torts, §§ 388, 408; Connors v. Great Northern Elevator Co., 90 App. Div. 311, affd. 180 N. Y. 509; Richards v. Texas Co., 245 App. Div. 797, motion for leave to appeal denied 268 N. Y. 728; MacKibbin v. Wilson & English Constr. Co., 263 App. Div. 1014, motion for leave to appeal denied 288 N. Y. 738). Maritime cases such as Muscelli v. Starr Contr. Co. (296 N. Y. 330) and Caldarola v. Moore-McCormack Lines (295 N. Y. 463) are distinguishable under the maritime ruling placing full responsibility upon a charter party.

The fact that the plaintiff’s employer,’as lessee of the crane; had an equal opportunity to discover the defect and would thus be within the compass of the MacPherson doctrine does not serve to relieve the owner of liability (Wanamaker v. Otis Elevator Co., 228 N. Y. 192).

The judgment should be affirmed, with costs.