205 N.Y. 317 | NY | 1912
The action was brought to recover damages for the death of the plaintiff’s intestate, which is alleged to have been caused by negligence chargeable to the defendant. The particular negligence charged consisted in the act of the engineer, at the time in charge of an engine upon which the deceased was working as fireman, in allowing the water to become so low in the boiler as to cause an explosion. It was alleged that the engineer was the vice-principal of the defendant; having the physical control and direction of the movement of the engine. The omission of the engineer was admitted upon the trial and, also, the fact that tho deceased came to his death through injuries received from the explosion. It was proved to be the engineer’s duty to see to the condition of the water in the boiler and that he omitted to operate the injector; a mechanical contrivance by which the water in the tender is fed to the boiler of the engine. At' the time of the occurrence, the engine, upon which were the deceased and • the engineer, was running on the defendant’s road without any cars attached and, being classed as a “train” under its rules, there being no conductor, the engineer was in charge. He was responsible for the safety of the train and the fireman was under his direction.
The trial court submitted to the jurors the question of the engineer’s negligence and instructed them that, if found, it was attributable to the defendant. Exception was taken by the defendant to this instruction and,
We think that the trial court committed no error, in ruling as it did upon this question.
It is, further, contended, on behalf of the appellant, that it was error for the trial court to exclude evidence, showing that the deceased had misrepresented his age at the time that he contracted with the defendant for his employment. The appellant proposed to show that, in the written application made by him, he falsely represented that he was over twenty-one years of age and, having obtained his position by the false representation, that his rights were only those of a licensee. The trial court committed no error in excluding the evidence; as constituting no defense. The misrepresentation of the deceased affected the contract of employment, in the sense, that it made it voidable; but it did not affect the relation of master and servant, with respect to the former’s obligation under the statute respecting the safety of the persons serving it. Notwithstanding that the deceased, by his misrepresentation, evaded the rule of the defendant forbidding the employment of minors, he was, actually, in its service and, therefore, was entitled to the protection of an employé accorded by the law. (See L. S. & M. S. Ry. Co. v. Baldwin, 19 Ohio C. C. 338; Lupher v. A., T. & S. F. Ry. Co., 81 Kans. 585.)
For the reasons given, I advise the affirmance of the judgment appealed from.
Cullen, Oh. J., Haight, Vann, Werner, Willard Bartlett and Chase, JJ., concur.
Judgment affirmed, with costs.