Majority
p. 369GARDNER v. SCHENECTADY RY. CO. (128 App. Div. 12.) (Supreme Court, Appellate Division, Third Department. September 17, 1908.) Argued before SMITH, P. J.,' and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.
Headnote
1. Master and Servant — Electricity — Death of Employé — Evidence of Other Defects—Admissibility.In an action agains an electric company for the death of an employé killed by electricity while trimming a lamp which had an alleged defective hood, evidence that other hoods on the company’s line were defective was improperly received.
2. Same.
In an action against an employer for the death of an employé claimed to have been caused by electricity passing through a rubber glove furnished him, it was improper to submit to the jury the question of the employer’s negligence in furnishing improper gloves, where the employé had the better opportunity to ascertain whether the gloves were defective.
3. Same—Evidence—Sufficiency.
Verdict for plaintiff in an action against an electric company for the death of an employé alleged to have resulted from the company’s negligence in maintaining a defective electric lamp, and in furnishing decedent defective gloves, held against the weight of the evidence.
4. Same—Employer’s Failure to Report Defect—Effect.
As to an employe, an employer is not chargeable with notice of a defect which it is the employe’s duty to report, but which he fails to do.
Appeal from Trial Term, Schenectady County.
Action by Bridget A. Gardner, administratrix of Joseph P. Gardner, deceased, against the Schenectady Railway Company. Prom a judgment for plaintiff, from an order denying a new trial, and from an order granting an extra allowance on the verdict, defendant appeals. Reversed and new trial granted.
Decedent was killed while employed as defendant’s electric street lamp trimmer, apparently by a current of electricity passing through a hole of the right-hand thumb of the rubber glove he wore. Plaintiff claims that the lamp and hook and appliances connecting therewith were defective, etc., and that the glove furnished was defective.
See 113 App. Div. 133 , 98 N. Y. Supp. 1034 .
Daniel Nay Ion, Jr., for appellant.
Edgar T. Brackett, for respondent.
This judgment should be reversed for the admission over the defendant’s objection of the evidence of the witness Ripley to the effect that other hoods upon the defendant’s line were defective.
The court improperly submitted to the jury the question of defendant’s negligence in furnishing improper gloves, inasmuch as the deceased had the better opportunity of ascertaining whether the gloves were defective.
Judgment should also be reversed as against the weight of evidence. Defendant has been charged with negligence in the killing of plaintiff’s intestate, where the manner of the killing is at the best speculative.
p. 370
The verdict has been reached upon the testimony of a brother-in-law, whose evidence is not sufficiently credible to sustain a verdict in view of the testimony which he gave upon the former trial. The report of the deceased upon the morning of the accident, failing to disclose any defect the night before in the lamp at which he was killed, either negatives the evidence that the lamp was not burning the night'before, or shows negligence on the part of the deceased in failing to discover the defective lamp. The company should not be charged with notice of a defect which it was the duty of the deceased to report, and which he failed to report. Moreover, it has not been proven that the failure of the light to burn the night before was due to any defect which caused the decedent’s death upon the following night.
Judgment and order reversed and a new trial granted, with costs to appellant to abide the event.
Cases cited
- Gardner v. Schenectady Ry. Co. 113 App. Div. 133 p. 369