Fines v. Woolfolk — 26 N.Y.S. 181

Majority

p. 181

(73 Hun, 549.)

FINES v. WOOLFOLK.

(Supreme Court, General Term, Second Department.

December 1, 1893.)

Headnote

Masteb and Sebvant—Negligence in Employing Fellow Sebvant.

Evidence that a servant was first employed on the day that plaintiff, his fellow servant, was injured by his fault; that defendant, the master, made no inquiries. about him, and knew nothing as to his fitness,—is sufficient to sustain a judgment for plaintiff on the ground that defendant did not use due care in selecting such servant. .

p. 182

Appeal from city court of Mt. Vernon.

Action by Michael Fines against Edward G. Woolfolk for personal injuries, for alleged negligence in employing a fellow servant of plaintiff, in consequence of whose incompetence plaintiff was injured. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.

William S. Cogswell, (Louis Malthaner, of counsel,) for appellant.

William J. Marshall, for respondent.

Appellant urges that the testimony introduced by plaintiff is insufficient to sustain the judgment. It must be admitted that, when the plaintiff rested the case, it was a close question. But the trial judge wisely “heard the other side,” and the cross-examination brought out facts which establish plaintiff’s cause of action. It thus appeared that the Italian whose blunder caused the injury was on that day employed at this work for the first time; that defendant made no inquiries about him,—knew nothing of his fitness, having merely notified the “patron” how many laborers were needed. And the foreman, upon whose direction, only, the stone should have been lowered, testified that he gave no such order. After this evidence, there is no serious question of defendant’s liability. Judgment affirmed, with costs. All concur.