Prendergast v. Erie Railroad

Headnote

Prendergast v. Erie R. R. Co., 160 App. Div. 909 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 7, 1914, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant, his employer. The injury was caused by a piece of steel flying from a tool used by another employee of defendant. The plaintiff predicated his cause of action upon the failure of the

defendant: 1. To furnish safe, suitable and proper tools with which to work. 2. In failing to adopt and promulgate rules for the proper, care of the tools in use; and 3. In failing to adopt and enforce the usual and ordinary-method of repairing and taking care of the particular tool from the breaking of which the injury occurred. The answer alleged that the injuries were caused by the negligence of the plaintiff himself or of a fellow-servant or fellow-servants with the plaintiff and also that the accident was the result of one of the risks of the plaintiff’s employment which he accepted and assumed hy entering into and continuing in the employment of the defendant.