Flinn v. World's Dispensary Medical Ass'n — 54 A.D. 564

Majority

p. 564

Henry M. Flinn, Respondent, v. The World’s Dispensary Medical Association and the American Engine Company, Appellants.

Headnote

1Negligence — eah'e required of a servant who starts'a printing press while it is ieing fitted with electrical appliances.

In an action to recover damages for personal injuries sustained by the plaintiff through the sudden and unexpected starting, by an electrical current, of a printing press which the defendants were engaged, in fitting with electrical appliances, it is error for the court to charge that if a certain servant of the ■defendants “ did not use such care as was commensurate with the danger which might result from his act in dealing with electricity, then plaintiff should i-ecover.”

p. 565

Ia such a case the servant is bound to exercise only that degree of care which a person of reasonable care and prudence would have exercised under the conditions, which, with the exercise of such care, he saw or ought to have seen.

Such care is not necessarily commensurate with the actual danger.

Appeal by defendants, The World’s Dispensary Medical Association and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of December, 1899, upon the verdict of a jury for $14,000, and also from an order entered in said clerk’s office on the 11th day of December, 1899, denying the defendants’ motion for a new trial made upon the minutes.

Frederic A. Ward, for the appellants.

David Murray, for the respondent.

The plaintiff, while in the employ of the New York Times, was injured by the sudden and unexpected starting of a printing press, caused by an electrical current, his hand being caught and crushed between the rollers. The defendants had contracted for the erection of certain electrical appliances connected with the press, and the plaintiff claimed that the defendants’ agent was negligent in the performance of the work for which the defendants had contracted.

It is not necessary to state the facts more specifically, as the judgment must be reversed for an error in the charge. The court had fully and properly instructed the jury in the principal charge, and also in answer to requests of the defendants upon the question of the care which the defendants were bound to use, but just at the close of the case the plaintiff’s counsel, not content with the correct statement of the measure of the defendants’ liability, requested the court to charge “ that if Porter is found to be a servant of defendant and did not use such care as was commensurate with the danger which might result from his act in dealing with electricity, then plaintiff should recover.” The court so charged and the defendants’ counsel excepted. It is manifest that the instruction imposed too strict a liability on the defendants. The care which' the servant was bound to exercise was not necessarily commensurate with the actual danger, as that would make the defendants’ liability conse

p. 566

quent upon the accident. He was bound to exercise only that degree of care which a person of reasonable care and prudence would have exercised under the conditions which, with such care, he saw or ought to have seen. Obedience to the charge compelled the jury to find that if there was danger*, even though it was unknown to Porter, or by the use of reasonable caution and prudence could not have been known by him, the defendants were still liable for any accident which resulted.

This error requires a reversal of the judgment.

All concurred, except Hirschberg, J., absent.

Judgment and order reversed and new trial granted, costs to abide the event.