| N.Y. App. Div. | May 15, 1900
This record presents a very close question as to whether the plaintiff did not, as matter of law, assume the risk. (Benfield v. Vacuum Oil Co., 75 Hun, 209" court="N.Y. Sup. Ct." date_filed="1894-01-18" href="https://app.midpage.ai/document/benfield-v-vacuum-oil-co-5506007?utm_source=webapp" opinion_id="5506007">75 Hun, 209 ; 151 N.Y. 671" court="NY" date_filed="1897-02-12" href="https://app.midpage.ai/document/munroe-v--judson-3631538?utm_source=webapp" opinion_id="3631538">151 N. Y. 671; Farrell v. Tatham, 36 A.D. 319" court="N.Y. App. Div." date_filed="1899-07-01" href="https://app.midpage.ai/document/farrell-v-tatham-5185280?utm_source=webapp" opinion_id="5185280">36 App. Div. 319 ; Moore v. E. M. Birdsall Co., 22 Wkly. Dig. 528 ; Koehler v. Syracuse Specialty Mfg. Co., 12 A.D. 50" court="N.Y. App. Div." date_filed="1896-07-01" href="https://app.midpage.ai/document/koehler-v-syracuse-specialty-manufacturing-co-5181545?utm_source=webapp" opinion_id="5181545">12 App. Div. 50 ; Bohn v. Havemeyer, 114 N. Y. 296 ; Carlson v. Monitor Iron Works, 38 App. Div. 39: Martin v. Cook, 37 N. Y. St. Repr. 733.) But we think the evidence was sufficient to require the submission to the jury of this question, and also of the questions (1) whether the plaintiff was guilty of contributory negligence, and (2) whether defendant was guilty of negligence.
The defendant had a right to presume that plaintiff possessed the
■ If the jury believed the testimony of the plaintiff that he did not know the danger, and that his experience and observation had been insufficient to charge him with knowledge thereof, they were justified in finding that the defendant was negligent in not properly-instructing him or apprising him of the danger. According to tile-testimony of the plaintiff, he met with the injuries while endeavoring to follow the instructions of the foreman. Although the precise instructions of the foreman were to pour the molten iron on-the sand near the sprue hole, to create a light, and on. this occasion it was so dark that plaintiff could not locate the sprue hole sufficiently to enable him to pour the '.metal near.it, yet, in view of such instructions and under all the circumstances disclosed by the record! now before us, it became a question for the jury as to whether he-was guilty of contributory negligence.
- It would seem that if the plaintiff’s failure to light the gas jets in the vicinity of his floor, which he claims were- not lighted, contributed to the accident, he would not be entitled to recover; but there being a question of fact as to whether the gas was lighted, and the-contention of the appellant on this subject being, not that plaintiff was guilty of negligence in not lighting the gas, but that the failure to light the gas was not the proximate cause of the injuries or imputable to defendant, we refrain from deciding whether it should be held, as matter of law, that such failure constituted contributory negligence. • .
The effect of these instructions, which were the last given to the-jury by the court, was to convey, the impression that the defendant-might be held liable for negligence in failing to light the .gas jet,, regardless of any other question. This charge constitutes reversible-error. The duty of lighting the gas jets did not devolve upon the= master. The court charged, as has been seen, that the defendant, had furnished an adequate lighting plant. This constituted a full, and complete performance of the defendant’s duty in regard to-lighting. The course of business, as shown by the evidence, was. for the employees to light the gas when necessary. The failure to light the gas on this occasion was the negligence of the plaintiff or of his co-employees, for which the defendant is not liable. (Kaare v. Troy Steel & Iron Co., 139 N.Y. 369" court="NY" date_filed="1893-10-03" href="https://app.midpage.ai/document/kaare-v-troy-steel--iron-co-3590543?utm_source=webapp" opinion_id="3590543">139 N. Y. 369 ; Sharpsteen v. Livonia S. & M. Co., 3 App. Div. 148.)
The record also presents some exceptions to medical testimony of questionable competency; but inasmuch as the error in. the charge requires that a new trial -be granted, upon which-the objectionable evidence may be avoided, we -do not deem it necessary to consider those exceptions.
The judgment and order appealed from should be reversed and a new trial granted, with costs- to the appellant to abide the event-
All concurred.
Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.