Colarrisi v. Potato Creek Railroad

Headnote

Colarissi v. Potato Creek, R. R. Co., 163 App. Div. 933 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, •' entered May 16, 1914, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover

for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant, his employer. The complaint alleged the incorporation of the defendant under the laws of the state of Pennsylvania and the laws of that state with respect to the liability of an employer for personal injuries to an employee; that on October 3, 1912, plaintiff was in the employ of the defendant at Norwich in that state; that while so engaged he and a co-employee were directed by their foreman to assist the defendant’s station agent in unloading and moving a piano from one of its cars; that thereupon under the control, direction and authority of said agent they proceeded and attempted to unload and move the piano; that while so engaged and without any negligence on his part contributing thereto the piano fell over and upon plaintiff, seriously and permanently injuring him; that such injuries were caused by the neglect of the defendant to adopt a proper method for unloading and moving said piano, to provide sufficient and proper co-employees, tools, instruments and appliances therefor, and to instruct plaintiff and his co-employees as to the proper method of unloading and moving the piano. Defendant, in addition to a denial, alleged that the law of the state of Pennsylvania, supplementary to the law alleged in the complaint, provides that “ where the only negligence involved is in the manner in which an order, rule or instruction, properly given, is executed by the servants to whom it is given,” the statute has no application, and then alleges that this accident occurred by reason of the failure of a servant to properly carry out an instruction properly given.