Majority
p. 617Ithaca Trust Company, as Executor of William E. Marion, Deceased, Appellant, v. Driscoll Brothers & Company, Respondent. (Argued January 25, 1917; decided February 9, 1917.)
Headnote
Ithaca Trust Co. v. Driscoll Brothers & Co., 169 App. Div. 377 , affirmed.Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 5, 1915, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of the defendant, his employer. The intestate, while working as a carpenter on d building in course of erection by defendant, fell from a beam and received injuries resulting in his death. The theory of defendant’s negligence on which the case was submitted to the jury was that the defendant had failed to entirely fill in the floor beneath that on which intestate was working, leaving a hole through which the intestate fell, thereby increasing the distance of the fall by nine feet.
E. H. Bostwick for appellant.
Peter F. McAllister for respondent.
Order affirmed and judgment absolute ordered against appellant on stipulation, with costs in all courts, upon the ground that the trial justice erred in charging the jury, in effect, that they might find that the opening in the floor caused the intestate to fall by reason of dizziness
p. 618
or fear on his part; and in further charging that they could not find the defendant guilty of negligence unless the specific act of falling was caused in whole or in part by the opening in the floor; thereby withdrawing from the jury the question as to whether or not the opening caused, in whole or in part, the injuries to plaintiff’s intestate, and the right to render a verdict in favor of the plaintiff in case it did contribute to those injuries; no opinion.
Concur: Hiscock, Oh. J., Chase, Collin, Cuddeback, Hogan, Cardozo and Crane, JJ.