Majority
p. 1130MARINARO v. MULTI-SPEED SHUTTER CO. (Supreme Court, Appellate Division, First Department. November 7, 1913.)
Headnote
Appeal from Trial Term,, New York County. Action by Francesco Marinare, an infant, by Guiseppe Marinare, his guardian ad litem, against the Multi-Speed Shutter Company, to recover damages for injuries suffered in defendant’s employ. From a judgment for plaintiff in the sum of $2,144.75, defendant appeals. Reversed, and new trial ordered. Sheffield, Bentley & Betts, of New York City (James R. Sheffield, of New York City, of counsel, and James J. Cosgrove, of New York City, on the brief), for appellant. Rosario Maggio, of New York City, for respondent.Upon careful consideration of this record, we are satisfied that the verdict is against the weight of evidence. The plaintiff failed to establish that there was any defect in the machine, that he was not properly instructed, and that the accident was caused by any actionable negligence upon the part of the defendant. Upon the evidence it would appear that it was physically impossible for the upper die to fall as claimed by him, leaving it fairly inferable that he himself caused it to descend by pressure upon the treadle. The judgment and order appealed from are therefore reversed, and a new trial ordered, with costs to the appellant to abide the event.