Citations
- 159 A.D. 412
Full opinion text
Scott, J.:
The only negligence charged against the defendants is that they “ failed and neglected to furnish plaintiff with a competent and skillful fellow servant to assist him in said work, and negligently furnished him with an incompetent and unskillful fellow servant in said work, and neglected to instruct plaintiff in the proper and safe method in which to perform his said work for which he was engaged and to warn him of the dangers incident thereto not patent to his observation.”
The evidence is insufficient to support a finding of negligence upon either of these counts. The work which plaintiff’s fellow-servant was called upon to do was not such as called for any special skill, and in fact such fefiow-servant was quite able to do his part of the w;ork properly, and in the great majority of cases did so. So far as he was concerned the only trouble was that he was careless, and if that carelessness can be said to have been the proximate cause of the accident, it was the negligence of a fellow-servant, not that of the employer.
The evidence does not show that the dangers incident to the work were “not patent to his [plaintiff’s] observation.” What dangers there were were perfectly apparent, and the plaintiff testified that he was perfectly aware of them, in addition to which he was expressly warned by one of the defendants.
In our opinion the verdict was clearly against the evidence.
The judgment and order appealed from should be reversed and a new trial granted, with costs to appellants to abide the event.
Clarke, Dowling and Hotchkiss, JJ., concurred; Ingraham, P. J., dissented.
Ingraham, P. J.-(dissenting):
I do not agree that the finding that the defendants were negligent was against the weight of evidence.
The plaintiff, an infant, was eighteen years of age. He had been in the defendants’ employ about a month and was paid about five dollars a week. He was put to work on this machine on the morning on which the accident happened. The plaintiff testified that the defendants instructed him in operating this machine to put his hands under the die under certain conditions. That this was a dangerous thing to do was apparent, and I think where such instructions are given and the plaintiff, an infant, follows such instructions and an accident results, it is a question for the jury to say whether, under all the circumstances, it was not a negligent act for an employer to give such instructions to an infant employee, thus subjecting the employee to the risk of an injury. It is, I think, a failure to properly instruct an infant put at work at such a machine, and it was at least a question for the jury to say whether, under, the circumstances, proper instructions had been given to him.
I am, therefore, in favor of affirming the judgment.
Judgment and order reversed and new trial ordered, with costs to appellants to abide event. Order to be settled on notice.