Branoner v. Traitel Marble Co.

and steam engine. Plaintiff was the assistant engineer, his tour of duty covering the night time. In the room next to the one in. which he was employed was the machinery operating the saws, and it was a part of his duty to assist ¡the 'sawyer, or man operating the saws, if called upon to do so. It was while so engaged that plaintiff was injured. The evidence concerning the operating of the machinery and the causes that' led to plaintiff’s being called upon to assist is extremely technical, and much of it has no real bearing upon the case, The result . of it is that the sudden starting of the motor, which led to the blowing out of a fuse and the extinguishment of the lights, and which so startled plaintiff that he fell, was due to carelessness or ineptitude on the part of the sawyer, who was unquestionably a fellow-servant. For some reason the learned trial justice gave but slight attention to this feature of the case. It is true that he did say at the commencement of his main charge that plaintiff could not recover if his injuries were due to the negligence of a fellow:employee in applying power to the saw. This, however, did not cover the case, for which there is warrant in the testimony, of negligence by a coemployee in not clearing the saws before trying to start them up. Later, when plaintiff asked for a charge respecting defendant’s liability for the negligence of a coemployee, the court said: “I have purposely refrained from amplifying my charge as: to a fellow-servant.” And still again, when defendant’s counsel requested the perfectly proper charge, that, “If the accident was due to the failure of the plaintiff’s fellow-employees to sufficiently loosen the saw before turning on the power, the verdict must be for the defendant,” the request was refused and an exception taken.. Under these conditions there was practically withdrawn from the jury all consideration 'of that question in the case which, in our opinion, was its most important, if hot its controlling feature. If that question had been' properly presented we cannot believe that the case would have resulted as it has. There is another matter which assumed a prominent place in the trial, and which probably served in some measure to induce what certainly appears to be a large verdict. We refer to the bringing out of the fact that the action was being defended by a casualty company.

That this fact was elicited in response to an inquiry by the court does, not serve, to mitigate, but rather to • enhance the wrong, especially in view of the fact that the court pointedly referred to the subject in its charge. Both this court and the Court of Appeals have frequently pointed out the unfairness and impropriety of permitting such a fact to be proven, the latter, court saying, in a very late case: “Evidence that the , defendant in an action for negligence was insured in a casualty company, or that the defense was conducted by an insurance company, is incompetent and so dangerous as to require a reversal even when the court strikes it from the record and directs the jury to disregard it, unless it clearly appears that it could not have influenced the verdict.” (Simpson v. Foundation Company, 201 N. Y. 479 .) In view of these errors it is unnecessary to consider the evidence in detail or to discuss any other question suggested by the record.-

The judgment and order appealed from must be reversed and a-new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., Clarke, Miller and Dowling, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.