Thompson v. Ross — 35 N.Y. St. Rep. 273

Majority

p. 273

John Thompson, Resp’t, v. P. Sanford Ross et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed December 8, 1890.)

Headnote

Appeal from judgment in favor of plaintiff, entered on the verdict of a jury.

The facts in this case are the same as those in Tonneson v. Boss.

Robert D. Benedict, for app’lts; J. Edward Swanstrom, for resp’t.

The court agree to affirm on the opinion in Tonneson v. Boss, supra.

The verdict for plaintiff went upon the sole ground that the defendants employed in their business an overseer or “ captain ” who was by his habits of intoxication rendered an improper person to be trusted with such work and that. defendants were chargeable with notice of his incompetence.

In answer to this it is shown by plaintiff’s testimony that he was fully aware of the captain’s incompetence and continued thereafter to work under him without objection or complaint

It appears that plaintiff’s brother worked under the captain two years before the plaintiff entered on the employment, and he testifies that during these two years the captain was an habitual drunkard.

Plaintiff testifies that before he went there he had often been told'that the captain was drunk, and that during his term of service and before the accident he had himself been a witness to the captain’s intoxication. Speaking of the captain he says: “I saw him like a crazy man pretty near every day * * * He looks drunk pretty near every day,” and goes on to say that before he went there his brother many a time told him the captain was drunk.

Dissent

p. 274

Upon this testimony it must be held that the plaintiff took the hazard of working under an intoxicated man.

The motion for nonsuit should have been granted.

Judgment reversed and new trial granted, with costs to appellant.

Judgment and order denying new trial affirmed on opinion in Tonneson v. Ross, with costs.

Barnard, P. J., and Dykman, J., concur.