65 N.Y.S. 1116 | N.Y. App. Div. | 1900
It is evident that the jury were given to understand that even if they found that defendant was not guilty of negligence with reference to the manner in which the plant was constructed, or in not having previously provided a drip cock or bleeder for the main steam pipe, that still if the jury found that the superintendent in turning the valve was not acting as a co-servant with decedent, and if his act in turning the valve was the sole cause of the injury, defendant would be liable. This we think was error. In effect the jury were permitted to find against the defendant, even if they believed from the evidence that defendant had discharged its duty of furnishing the decedent a reasonably safe place in which to perform his duties. If the place was safe and was made dangerous only by the acts of the superintendent in opening the valve, plaintiff' was entitled to recover under this charge, provided the jury were of opinion that the superintendent, in opening the valve, represented the master. The legal proposition thus presented is, whether the superintendent while testing machinery or appliances, so represents the master as to make the latter liable to another employee injured directly and immediately by the superintendent’s negligent act. It
These exceptions present reversible errors and require a new trial, with costs to appellant to abide the event.
Adams, P. J., concurred; McLennan and Williams, JJ., concurred in result; Spuing, J., dissented.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.