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Wiesnewsky v. E. E. Smith Contracting Co.

152 N.Y.S. 1149 Court N.Y. App. Div. Decision date 1915-04-01 English

Decision Majority — PER CURIAM. · Dissent — BURR, J.,

Contents

Majority

p. 1149
WIESNEWSKY, Respondent, v. E. E. SMITH CONTRACTING CO., Appellant.
(Supreme Court, Appellate Division, Second Department.
April 1, 1915.)

Headnote

Action by Joseph Wiesnewsky against the E. E. Smith Contracting Company.

Judgment and order affirmed, with costs.

dissents upon the grounds, first, that the verdict is against the weight of evidence; second, that there is no evidence which would justify the charge of the court that the jury might find that the master “promised to remove the danger which created the risk.” The

Dissent

p. 1150
danger which created the risk was the conduct of the boy Oarr. This conduct could only be completely cured and the danger removed by the discharge of the boy. Defendant’s foreman never promised to do this. He did nothing more than, in substance, to promise that he i would admonish the boy to be more careful, that he would watch him, and that he would attend to him. Admonition is not the equivalent of control, nor watchfulness the same as removal. See, also, 161 App. Div. 958 , 146 N. Y. Supp. 1118 .