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Girshoff v. Marx

124 N.Y.S. 1083 Court N.Y. App. Div. Decision date 1910-10-07 English

Delivered by WOODWARD, J.

Contents

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p. 1083
GIRSHOFF v. MARX et al.
(Supreme Court, Appellate Division, Second Department.
October 7, 1910.)

Headnote

Master and Servant (§§ 288, 289[1] )—New Trial (§ 65*)—Questions of Fact —Evidence.
In .an action under the, employer’s liability. act (Consol. Laws, c. 31, §§ 200-204), the question of contributory negligence and acceptance of risk is one of fact; and, where there is evidence in support of plaintiff’s cause
p. 1084
of action, it is not ás a rule the province of the trial court to set aside a verdict in his favor.
[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. §§ 288, 289;* New Trial, Cent. Dig! § 130; Dec. Dig. § 65.*]
Appeal from Municipal Court, Borough of Brooklyn, Seventh'District.
Action by Samuel Girshoff against Michael Marx and another. From an order setting aside a verdict for plaintiff, he appeals.
Reversed, and verdict reinstated.
Argued before WOODWARD, JFNKS, THOMAS,' RICH, and CARR, JJ.
Isador Goetz, for appellant.
Earle W. Webb, for respondents.

Plaintiff pleaded, and established by evidence, a cause of action under the employer’s liability act, and the jury gave him a verdict for $175 in the Municipal Court. This verdict the learned court' set aside and granted a new trial, evidently upon the theory that the plaintiff had been guilty of. contributory negligence.

We think the court erred in this. The evidence showed that defendants furnished a defective machine for plaintiff; that he had complained of the defect to a foreman, and that the latter had promised to repair the same; that the accident occurred by reason of a belt slipping from a loose pulley to a tight one, starting the machine on which plaintiff was engaged in making repairs. Under the employer’s liability act, the question of contributory negligence and acceptance of risks is one of fact; and where there is evidence in support of plaintiff’s cause of action it is not, as a rule, the province of the court to set aside the verdict. In this case there was abundance of evidence from which the jury might have found the plaintiff free from contributory negligence, and the reasons suggested by the learned court for setting aside the verdict clearly indicate the error of the action..

The order should be reversed, and the verdict reinstated, with costs. All concur.