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Feroldi v. George Vassar's Sons & Co.

130 N.Y.S. 112 Court N.Y. App. Term Decision date 1911-06-29 English

Delivered by SEABURY, J.

Contents

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p. 112
FEROLDI v. GEORGE VASSAR’S SONS & CO.
(Supreme Court, Appellate Term.
June 29, 1911.)

Headnote

Master and Servant (§ 287[1] )—Injury to Servant—Evidence—Instructions.
Where, in an action by a servant for personal injuries, the issue was whether a third person was a superintendent or a fellow servant, the action of the court in withdrawing, in its charge to the jury, the question whether the third person was a fellow servant, and in refusing to charge that, if the third person was a fellow servant, there could he no recovery, was reversible error.
• [Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1051-1067; Dec. Dig. § 287.[1] ]
Appeal from Municipal Court, Borough of Manhattan, Sixth District.
Action by Luigi Eeroldi against George Vassar’s Sons & Co. Prom a judgment for' plaintiff, and from an order denying a new trial, defendant appeals.
Reversed, and new trial ordered.
Argued before SEABURY, GUY, and BIJUR, JJ.
Amos H. Stephens (Cleland R. Neal, of counsel), for appellant.
Charles S. Rosenthal (Jacob I. Berman, of counsel), for respondent.

This is an action to recover damages for personal injuries which the plaintiff claims he sustained while in the defendant’s employ. It is unnecessary to review the facts, as we think that the defendant’s exception to the charge of the court presents the only question requiring comment.

The chief point in issue was whether one Walsh was a superintendent, or whether he was a fellow servant of the plaintiff. It was within the province of the jury to determine this issue. The charge of the court, by withdrawing from the consideration of the jury the question as to whether Walsh was a fellow servant, and his refusal to charge that, if the jury found that Walsh was a fellow servant, the plaintiff could not recover, decided the chief point in issue in favor of the plaintiff as a matter of law. This erroneous ruling was necessarily prejudicial to the defendant, and requires that the action should be retried.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.