Ginsberg v. Wolf — 159 A.D. 412

Majority

p. 412

Harry Ginsberg, an Infant, by Rachel Ginsberg, His Guardian ad Litem, Respondent, v. Harry Wolf and Charles Wolf, Copartners, Doing Business under the Firm Name and Style of New York Embossing Company, Appellants.

First Department,

December 5, 1913.

Headnote

Master and servant—negligence — injury to infant—failure to furnish competent fellow-servant—failure to instruct and warn employee — evidence insufficient to sustain recovery.

In- an action to recover for personal injuries to a boy eighteen years of age, the only negligence charged was that the defendants failed and neglected to furnish plaintiff with a competent and skillful fellow-servant to assist him, and neglected to instruct him how to perform his work, or to warn him of the dangers incident thereto. Held, that the evidence was insufficient to support a finding of negligence upon any of the grounds stated.

IíTUBAHAM, P. J., dissented, with opinion.

Appeal by the defendants, Harry Wolf and another, from a judgment of the Supreme Court in favor of the plain-' tiff, entered in the office of the clerk of the county of New York on the 18th day of December, 1912, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 2d day of January, 1913, denying defendants’ motion for a new trial made upon the minutes.

Walter L. Glenney, for the appellants.

E. Clyde Sherwood, for the respondent.

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

Dissent

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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.

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

p. 414

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.