Lynch v. Board of Education

Headnote

Lynch v. Board of Education, N. Y. City, 172 App. Div. 906 , affirmed.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 2, 1916, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action under the Employers’ Liability Act to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. The complaint alleged that plaintiff’s intestate was in the employ of defendant as a fireman in Public School No. 114 and that he was found dead in the' basement of the school in the vicinity of an engine. The allegation was made that, on the day in question, while intestate was “ then and there engaged in and about the performance of his work for the defendant, its agent or other employee, so carelessly, negligently and unskillfully conducted itself in and about the charge, care and management and control of the engine maintained by the defendant in the engine room of said building aforesaid, in failing to have the said engine and the appurtenances thereof properly protected and guarded, so as not to endanger the life and limb of persons lawfully at work in, upon or about the same, and by reason of the failure of* the defendant to comply with the Consolidated Laws, chapter 31 (Laws óf 1909, chap. 30, sect. 81), as amended by Laws of 1910, chapter 106, and amended by Laws of 1913, chapter 286, that through the aforesaid carelessness and negligence, the plaintiff’s intestate’s body ” was caught in the flywheel of the said engine, and he received injuries resulting in his death. These allegations are put in issue by the defendant, and it pleads,

as an affirmative defense, that the injuries were sustained by the fault or negligence of the deceased.