91 N.Y.S. 279 | N.Y. App. Div. | 1905
The judgment and order should be affirmed, with costs.
The action was to recover damages for the death of plaintiffs Intestate, alleged to have been caused by the negligence of the defendant. The death resulted from the explosion of a digester in the defendant’s mill in the early morning of Sunday, January 18, 1903. The questions raised by this appeal relate to the defendant’s alleged negligence, the contributory negligence of deceased, his assumption of the risk of the accident, the amount of the verdict, and the exceptions to evidence and to the charge of the court. The only question of negligence on the part of the defendant submitted to the jury related to alleged defects in the digester, and it was necessary that the proof should show the existence of such defects, that the defendant knew" or should have known of them prior to the accident, and failed to repair them. The verdict of the jury involved a finding of these facts, and the question is whether there was evidence to support such finding. The digester was forty-two feet long and fourteen feet in diameter. It was composed of a steel shell seven-eighths .of an inch thick with a thin inside lining of litharge or sheetlead. Next to this lead, inside, was a coating of cement about two inches thick, and inside this cement were two courses of brick, the one next the cement laid flat and the other edgewise, and all was cemented inside the shell, making a complete arch twelve or thirteen inches thick. The digester was placed horizontally in the mill and had manholes in the top to receive the material, and manholes in the bottom to remove the product manufactured. The method of using the digester was to put in some water and turn the steam into the coils of lead pipe inside the digester so as to heat the water gradually up to boiling for twenty-four
We cannot say that the verdict rendered was,, as to this issue, contrary to or against the weight of the evidence. It could not certainly be said, as a matter of law, that there was no negligence.
Then Babcock, a superintendent of defendant, testified as to what Pound said to him about the cracking of the -digester that night. The credibility of these three witnesses was attacked on the trial by plaintiff. The deceased could not contradict Slough. Pound did, however, and whether Slough or. Pound told the truth was a question for the jury. The deceased could not contradict Campbell, but whether contradicted by other witnesses or not, his credibility, he being superintendent of the defendant charged with the negligence .which caused the accident in question, was for the jury. (Volkmar v. M. R. Co., 134 N. Y. 418.) Whether Pound- or Babcock told the truth in their conflicting evidence- was a question of fact for the jury. We make no suggestions as to the credibility of these various witnesses. Counsel for defendant has’ done that here as he very likely did before the jury. It is sufficient for us that there was a conflict upon a question of fact for the jury.' We cannot say that the finding in favor of the plaintiff vyas contrary to or against xthe weight of the evidence. The plaintiff had the burden of proof as to contributory negligence; the defendant, as to assumed risk. We have examined the various exceptions to evidence and the charge, and do not find any that require a reversal of the judgment and order. The service of a. typewritten notice under the Employers’ Liability Act (Laws of 1902, chap. 600, § 2) was the serving of a sufficient notice- in writing. Typewriting has largely taken the place of handwriting and may well be considered as handwriting. It would be too strict 'a construction of the' statute - to hold this notice invalid because in typewriting instead of handwriting.
The judgmentand order should be affirmed, with costs..
All concurred, except .McLennan, P., J., who voted for reversal upon the ground that plaintiff failed to establish her intestate’s freedom from- contributory negligence, and Stover; J., who voted for reversal upon the ground that the evidence failed to establish the negligence of the defendant or freedom- from contributory negligence on the part of the-plaintiff’s intestate. .
Judgment, and order, affirmed, with costs.'