Tobin v. Yonkers Electric Light & Power Co.

Headnote

Tobin v. Yonkers Electric Light & Power Co., 173 App. Div. 365 , affirmed.

Appeal from a judgment entered June 27, 1916, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant, his employer. The plaintiff was in defendant’s employ, engaged in digging holes for electric light poles. While standing in a hole holding a steel drill or striking bar used for chipping rock, he received a glancing blow on the side of his head from a sledge hammer in the hands of a fellów-employee, who was engaged in striking the drill which plaintiff was holding. The case went to the jury upon the theory that the defendant was negligent in furnishing a defective tool, namely, a striking bar, the top of which was burred, mushrooned, flattened out or flanged, causing the hammer

to slip, and was further negligent in that its foreman, after being told by plaintiff that the bar was unsafe, directed plaintiff to°go on working with it. The Appellate Division directed a dismissal of the complaint on the ground that plaintiff knew the condition of the drill and, therefore, assumed the risk.