38 N.Y.S. 1104 | N.Y. App. Div. | 1896
This was, as the learned trial judge observed in his charge, peculiarly a case for the jury. The plaintiff was injured by the defendants’ truck while he was occupied in mixing mortar upon the liighway in front of 223 Madison street, in this city. He was a laborer employed by one Harlow, who had the contract for plastering a building which was being erected at tbe above number. Harlow had a pile of mortar there upon the street, and the plaintiff says he was stooping down in the act of filling his hod when he was run over by the defendants’ truck. We entirely disagree with the appellants in their view of the facts. The plaintiff’s story, fortified "by that of his fellow-laborer, Higgins, was sufficient to take the case to the jury. Their story was denied hy the defendants’ witnesses, Put the conflict raised a fair question as to the negligence of the defendants’ driver, and also as to the plaintiff’s freedom from negligence. The plaintiff’s employment was lawful. Harlow was
" III. It is the duty of one using the street for the purpose of mixing mortar, or filling the same into a hod, to use diligence in avoiding danger, especially in looking out for teams, and if the jury believe from the evidence that the plaintiff did not use such diligence, and by reason whereof met with this accident, he cannot recover from this defendant.”
The learned judge declined to charge the proposition, and the defendants excepted. We think this was error. The language of the request seems to us to be a correct condensation of the true rule applicable to the circumstances. We have searched diligently for a satisfactory answer to this assignment of error, but we find none. The respondent, indeed, does not deny the accuracy of the rule embodied in the request. He seeks to cure the error by the sug
The judgment and order appealed from should, therefore, be reversed and a new trial ordered, with costs to the appellants to abide the event.
Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.
Judgment and order reversed and new trial ordered, with costs to appellants to abide event.