Babcock v. State , 180 N.Y.S. 3 ( 1919 )

John M. Kellogg, P. J. (concurring):

The enabling .act contemplates that the plaintiff shall not recover if the injury was due to his personal fault. He directed the other engineers to assemble the material on the job. His duties required his services elsewhere, and he was to meet them there, the material being selected by them. I do not think he was required to expect that competent engineers would bring rotten ropes for use in descending the precipice, but he had the right to assume that the material brought by them had been properly selected. The ordinary rules applicable to a negligence action are not present here. The plaintiff should be chargeable only with his own fault and not with the fault or neglect of others.

All concur, except Cochrane, J., dissenting on the ground that the claimant was negligent.

Judgment reversed upon the law and the facts and a new trial granted, with costs to appellant to abide the event. The court disapproves of the sixth and seventh findings of fact.