Majority
p. 886Second Department, October, 1910. Samuel Girshoff, Appellant, v. Michael Marx and Jacob Jacobson, Respondents.
Headnote
Negligence —• Mnvployers’ Liability Act — 'defective machine.Appeal by the plaintiff from an order of the Municipal Court of the city of New York, borough of Brooklyn, entered in the clerk’s office of said court on May 11, 1910, setting aside a verdict in his favor.
Plaintiff pleaded and established by evidence a cause of action under the Employers’ Liability Act,[1] and the jury gave him a verdict for §175 in the Municipal Court. This verdict the learned court set aside and granted a new trial, evidently upon the theory that the plaintiff had been guilty of contributory negligence. We think the court erred in this. The evidence showed that defendants furnished a defective machine for plaintiff; that he had complained of the defect to a foreman and that the latter had promised to repair the same; that the accident occurred by reason of a belt slipping from a loose
* see Laws of 1903, chap. 600; Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36), § 300 et seq.— [Rep.
p. 887
pulley to a tight one, starting the machine on which plaintiff was engaged in making repairs. Under the Employers’ Liability Act the question o f contributory negligence and acceptance of risks is one of fact, and where there is evidence in support of plaintiff’s cause of action it is not, as a rule, the province of the court to set aside the verdict. In this case there was abundance of evidence from which the jury might have found the plaintiff free from contributory negligence, and the reasons suggested by the learned court for setting aside the verdict clearly indicate the error of the action. The order should be reversed and the verdict reinstated, with costs. Jenks, Thomas, Rich and Carr, JJ., concurred. Order of the Municipal Court reversed and verdict reinstated, with costs.