Donohue v. East River Mill & Lumber Co. — 156 N.Y.S. 365

Majority

p. 365

DONOHUE v. EAST RIVER MILL & LUMBER CO.

(Supreme Court, Appellate Division, First Department.

December 24, 1915.)

Headnote

Master and Servant @=-238—Liability for Injuries—Contributory Negligence.

It was negligence, defeating a recovery against a lumber company, for a person to attempt to climb to the top of a pile of lumber by an unsafe way. unnecessarily selected by himself.

[Ed. Note.—For other cases, see Blaster and Servant, Cent. Dig. §§ 681, 743-748; Dec. Dig. <@=3238.]

<$37>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Appeal from Trial Term, New York County.

Action by Catherine Donohue, as administratrix, against the East River Mill & I,umber Company. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed, and complaint dismissed.

Argued before INGRAPIAM, P. J., and McLAUGHLIN, LAUGH-LIN, SCOTT, and DOWLING, JJ.

Lyman A. Spalding, of New York City, for appellant.

George B. Covington, of New York City, for respondent.

We are of opinion that the plaintiff failed to show any negligence on the part of defendant, and that the death of her husband was caused by his own negligence in attempting to climb to the top of the pile of lumber by an unsafe way, unnecessarily selected by himself. The findings of; negligence on the part of the defendant and of freedom from negligence on the part of decedent are therefore reversed, and the judgment and order are reversed, with costs, and complaint dismissed, with costs.