Thall v. Carme — 24 N.Y. St. Rep. 270

Majority

p. 270

Frank Thall, an Infant, by John H. Snyder, his Guardian ad litem, Resp’t, v. John A. Carme, App’lt.

(Supreme Court, General Term, Second Department,

Filed May 18, 1889.)

Headnote

1. Master and servant—Duty to instruct servant.

When a master engages a young and inexperienced servant, and places-him in a place of latent or obscure danger, it is the duty of the master to instruct the servant how to do the work and howto be on his guard against danger, and he is liable for injuries occasioned by failure to give such instructions.

2. Same—Eeizlow servants.

It is no defense to an action for such injuries that plaintiff was acting at the time of the accident under the orders of a fellow servant, for whose negligence the master could not he held responsible, and it is proper to charge in such case that if the instructions required by law from an employee would have sufficed to put the plaintiff on his guard against the negligent orders of the fellow servant, and would have prevented the accident, a recovery might be had for the negligence of the master.

Appeal from a judgment of the circuit court of Kings- county in favor of the plaintiff.

Beltz & Large, for app’lt; I. S. Catlin, for resp’t.

The circuit judge correctly charged the jury that when a master engages an inexperienced servant, especially if of tender years and presumed ignorance, and places him in a place of latent or obscure danger, it is the duty of the master to instruct the servant how to do the work, and at the same time be on his guard against the danger.

Tested by that rule, the motions for nonsuit and for dismissal of the complaint were properly denied.

The master did not claim that he had personally given the instructions the rule required. And the jury might well find that such instructions as were testified to did not meet the exigencies of the danger.

The jury may well have thought that telling a lad to be careful, was not adequate instruction. Great stress is laid by appellant upon the, fact that the lad was injured while acting under the orders of Ward, a fellow servant, for whose negligence the employee cannot be held responsible. But the recovery did not proceed upon the ground of Ward’s negligence. The jury were carefully instructed that for such negligence no recovery could be had. They were also instructed that if the instructions which the law required from an employer in such circumstances would have sufficed to put the lad on his guard against the negligent orders of Ward, and would have thereby prevented the accident, a recovery might be had for the negligence of the employer. In this there was no error.

Judgment affirmed, with costs.

All concur.