Gibson v. Casein Manufacturing Co. , 141 N.Y.S. 887 ( 1913 )

Kellogg, J.:

The charge properly submitted the case to the jury, and we cannot say that the verdict is not sustained by the evidence. It is not clear that the deceased was fixing the setscrew while the machinery was in motion. If, however, we assume otherwise, we cannot say as a matter of law that he was guilty of contributory negligence. The appellant introduced such evidence as seemed to it proper. It did not show whether the rules or custom of the mill required that the engine be shut down while the setscrew was being adjusted. Apparently it was not deemed unusual that it was not shut down in this case. Naturally it would be better for the employee to shut off the power if he alone is considered; but that would delay the defendant’s work. Permitting the engine to run was for the defendant’s interest only, and it is not unreasonable to assume that the usual custom of the mill was followed. There was no eye-witness to the transaction, and I think within Irish v. Union Bag & Paper Co. (103 App. Div. 45; 183 N. Y. 508) the jury may well have determined that the intestate was free from contributory negligence.

The difficulty with the case, as I see it, is that the plaintiff was permitted to prove, over the defendant’s objection, that the intestate was an ordinarily cautious man when employed around the various kinds of machinery. The authorities seem to compel the conclusion that such evidence is inadmissible. Zucker v. Whitridge (205 N. Y. 50) holds that if there is an eyewitness, then it is inadmissible to prove that the deceased was a prudent and careful person, without passing upon the question whether the rule applies if there is no surviving witness, but Parsons v. Syracuse, B. & N. Y. R. R. Co. (205 N. Y. 226), a case where there was no eye-witness to the intestate’s acts, indicates that the rule applies whether there is or is not a surviving witness of the transaction.

Perhaps these cases do not necessarily decide the question, but it seems to me that we are foreclosed by them from further consideration of it. I, therefore, feel constrained to favor a reversal.

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred; Woodward, J., in opinion, except Smith, P. J., who dissented in memorandum; Lyon, J., not sitting.