Scarpinato v. W. L. Cosgrove Co.

Headnote

Scarpinato v. Cosgrove Co., 172 App. Div. 950 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered

February 11, 1916, 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 plaintiff, at the time of the accident complained of, was engaged in breaking flagstones with a steel sledge hammer. It was the plaintiff’s claim that the edges of both the striking surfaces of the hammer had become burred or mushrooned; that before using it he pointed out the condition of the hammer and the danger of using it to the defendant’s foreman, who directed him nevertheless to use it; that in the course of his work a burr or chip from the edge of the hammer flew off and struck him in the eye, ultimately causing total blindness of that eye. Defendant contended that the notice of injury was insufficient under the Labor Law in that it failed to state the cause of the injury; and in that it was misleading and inconsistent with the facts later pleaded and proved by the plaintiff; that there was no evidence either that the condition of the hammer caused the injury, or that the defendant knew or ought to have known of the condition of the hammer; that no cause of action was made out either under the statute or at common law; that the plaintiff was guilty of contributory negligence and assumption of risk as a matter of law; that there was no evidence before the jury from which negligence could be imputed to the defendant; and that errors were made in the admission of testimony over the objection and exception of the defendant which were so prejudicial to the defendant as to require a reversal of the judgment.