Citation Numbers: 157 N.Y.S. 457
Judges: Lehman
Filed Date: 2/23/1916
Status: Precedential
Modified Date: 10/17/2022
The plaintiff has recovered a judgment under the Labor Law for the sum of $1,000 for personal injuries which he claims he suffered through the negligence of defendant’s superintendent or foreman. It appears that the plaintiff was employed by the defendant as a driller in a tunnel. A track ran through this tunnel, upon which the defendant operated an electric motor. On the day of the accident the electric motor in some way ran off the track. The foreman directed the workmen, including the plaintiff, to replace the motor. A number of the workmen were directed to pry up the motor with a long rail on one side of the track. The plaintiff was standing on the other side of the track. He was apparently not directed to lift up the motor, hut was directed to pry upon another long rail in the front of the motor, to hold in place some blocks which had been placed under the front wheel. He and his witnesses claim that while this work was going on the foreman told the motorman sitting in the motor to “go ahead”; that no warning of this order was given to the plaintiff; that the motorman immediately started the motor, and there threw the plaintiff. The defendant’s witnesses deny that the motorman was on the motor or that the foreman told him to go ahead. Their
“Do you believe under all the evidence that there was a sudden starting o£ this motor under orders from the foreman, ‘in order to help get this motor back on the track,’ and that this order was given without warning to the men who were engaged in lifting this motor with rails.”
The attorney for the defendant duly excepted to the statement contained in the charge, “in order to help get the motor back on the track.” There is no evidence to justify any inference that if such an order was given it was given for such a purpose, and this part of the charge was therefore erroneous.
Judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.