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there about two minutes started to return, This case was decided, therefore, without and that the trolley car turned from Cham- the plaintiff making any statement about the bers street into Crocheron avenue when the accident. plaintiff was on the second rail from the The court also charged the jury: south as he was returning to the place on the "This boy is not in law chargeable with the pipes which he left a few minutes before. same degree of care for his own safety as if he It could also have found that when the were an adult. He is only liable for that degree

of care which a boy of his age and intelligence plaintiff was on the first rail from the south and previous experience and training would be he looked towards Chambers street, and at expected to employ under the conditions which that time no car was in sight, and that he existed at this time and place. It is for you to then continued in a diagonal direction with say, gentlemen, and not for the court to hold

as a matter of law, that this boy was what we his face turned away from the car, and that call in law sui juris; that is, that he was at the car after entering Crocheron avenue con- this time exercising that degree of control of his tinued at a rapid rate of speed without blow- actions which would be expected of a person of ing a whistle or sounding a bell until the sui juris, or whether he was not.

riper years. You must decide whether he was

If you find plaintiff was struck as stated, as he was leav- that he was sui juris, then you will expect and ing the last rail on which the car was pro- require that he shall exercise that degree of conceeding. No claim was made in this court trol which a person of that age would be expectthat the question of the defendant's negli-ents or guardians did not exercise a reasonable

ed to employ. If he was not, then if his pargence was not one of fact for the jury. The degree of care for his safety under these condiAppellate Division has held as a matter of tions, their negligence, if you find that there was law that the plaintiff was guilty of contribu- any, would be attributable to him.” tory negligence, and it has not only reversed

No evidence was offered on the trial with the judgment of the trial court, but bas dis- special reference to the negligence, if any, missed the plaintiff's complaint.

of the parents or guardians of the plaintiff. Tue question whether the plaintiff was It appears that the plaintiff was by his mother guilty of contributory negligence in not again sent to Sunday school in company with his looking to the east after passing the first brother, who was 11 years old. No claim is rail to the south, although no whistle was urged in this court that the plaintiff's parblown or bell rung by the motorman, was ents or guardians were negligent. The jury decided in favor of the plaintiff by the jury. were instructed to determine whether the In so deciding the jury were permitted to plaintiff was sui juris. They may have consider the plaintiff's age, experience, men found that he was not sui juris.. In any tal development, and general capacity to care event they have found for the plaintiff, and for himself and to exercise judgment and dis- thereby negatived all contributory negligence cretion. Zwack v. N. Y., Lake Erie & West

on his part or the part of his parents or ern R. R. Co., 160 N. Y. 362, 54 N. E. 785; guardians. We think that under the circumLafferty v. Third Ave. R. R. Co., 176 N. Y. stances disclosed, and considering the age 594, 68 N. E. 1118; Costello v. Third Ave. of the plaintiff, it cannot be said as a matR. R. Co., 161 N. Y. 317, 55 N. E. 897; Sim- ter of law that he was guilty of contribukoff v. Lehigh Valley R. R. Co., 190 N. v. tory negligence. 256, 83 N. E. 15; Jacobs v. Koehler S. G.

The judgment of the Appellate Division Co., 208 N. Y. 416, 102 N. E. 519. The plain- should be reversed, and the case remitted to tiff was offered as a witness in his own be- that court, for it to consider the weight of half and the judge sitting at the Trial Term evidence, with costs in this court. questioned him, and listened to his answers

HISCOCK, C. J., and COLLIN, CUDDEto questions propounded by his counsel, and BACK, HOGAN, CARDOZO, and POUND, then refused to permit him to be sworn as

concur. a witness. In so doing he necessarily held that the plaintiff did not sufficiently ap Judgment reversed, etc. preciate the nature of an oath to warrant the acceptance of his testimony as a witness.

(220 N. Y. 27) In presenting the case to the jury the court LARKIN v. NEW YORK TELEPHONE CO. say:

et al. “He was not permitted, as you notice, to be (Court of Appeals of New York. Jan. 9, 1917.) sworn as a witness in the case by the court, be- 1. APPEAL AND ERROR Om987(4) — REVIEW cause he did not apparently understand the na QUESTIONS OF FACT_STATUTE. ture and obligations of an oath. Under the law, Under Code Civ. Proc. $ 1338, providing a witness who does not understand, a witness that on an appeal to the Court of Appeals from whose age is too young, or whose instruction has a judgment of the Appellate Division reversing not been sufficient to guide him and instruct him a judgment entered on a verdict, it must be conin the obligations of an oath, cannot be sworn clusively presumed that the reversal was not as a witness in civil action.

The re- based on a question of fact, unless the particular sult of that would be just the same as if the question or questions of fact on which it was child had been unable to talk; so young in age

based are specified, the Appellate Division that he was unable to speak or to give any state- should examine facts in all cases. ment at all about the accident. So you have to (Ed. Note.-For other cases, see Appeal and judge of the merits of his claim by the testimony Error, Cent. Dig. § 3896; Dec. Dig. of the other witnesses in the case."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


2. MASTER AND SERVANT 289(35) INJU-stiff, entered upon a verdict of a jury, was reRIES TO SERVANT QUESTIONS FOR JURY

versed by the Appellate Division (169 Apr. CONTRIBUTORY NEGLIGENCE.

A telephone company can escape liability as Div. 162, 154 N. Y. Supp. 804), and plaintii a matter of law for its negligent failure to appeals. Order of Appellate Division remake the place of work safe for its linemen, by versed, and judgment of trial court affirmed. promulgating a rule requiring constant and extraordinary care in all circumstances, and par

See, also, 158 App. Div. 414, 143 N. Y. ticularly the use of rubber gloves at all times

Supp. 578. when making repairs to telephone circuits,

John M. Ward, of New York City, for which was disregarded by the employé, only in case the inference of negligence from the disre- appellant. Alexander Cameron, of New York gard of such rule is so plain that all fair-mind- City, for respondent Telephone Co. John C. ed men would be compelled to that conclusion. Robinson, of New York City, for respondent

[Ed. Note.-For other cases, see Master and Electric Co. Servant, Cent. Dig. $ 1127; Dec. Dig. Om 289(35).)

POUND, J. This is an action to enforce 3. MASTER AND SERVANT Ow289(35)-INJU- the common-law liability of defendants for


negligence. Plaintiff's intestate was a cable Where a telephone company had established splicer employed by the defendant telephone a rule requiring its linemen to wear rubber company. His death was due to an electric gloves in all cases when repairing the lines, shock sustained by him in the course of his but there was evidence that the rule was never enforced, and that it was not intended to apply employment, while he was working on a pole to the work a lineman was doing, when killed, and was about to splice some burned-out which would have been difficult, if not impos- wires in a cable tap which ran from the sible, for him to do with gloves on, it was a question for the jury as to whether he was con- main telephone cable down to a terminal box tributorily negligenť in disregarding the rule, so on the pole. The pole was used jointly by as to relieve the master from its negligent fail the defendants to carry both telephone and ure to make the place of work safe.

electric light wires, the electric light wires (Ed. Note.-For other cases, see Master and Servant, Cent. Dig. $ 1127; Dec. Dig. m above and the telephone wires below. The 289(35).)

negligence complained of, broadly speaking, 4. MASTER AND SERVANT 146-INJURIES TO

is as follows: The electric light company is SERVANT-CONTRIBUTORY NEGLIGENCE-Dis alleged to have created a dangerous condiBEGARD OF Rule—KNOWLEDGE OF MASTER. tion by permitting improperly insulated

Where there was evidence that a telephone wires carrying 2,300 volts of electricity to recompany was not enforcing its rules for the protection of employés in places made dangerous main in proximity to the telephone wires, by the employer's negligence, it is not necessary so that a contact between them was probable to show knowledge of the disregard of the rule through sagging or breaking of wires. The by an injured employé to charge the employer result of a cross would be the discharge of a with liability.

[Ed. Note. For other cases, see Master and deadly current into the telephone wires, froin Servant, Cent. Dig. $ 284; Dec. Dig. 146.] which an accident to any one working on the 5. MASTER AND SERVANT Om 243(1)-INJURIES telephone wires might reasonably be foreTO SERVANT CONTRIBUTORY NEGLIGENCE seen. Braun v. Buffalo G. E. Co., 200 N. Y.

- DISREGARD OF RULE – UNSAFE PLACE TO 484, 94 N. E. 206, 35 L R. A. (N. S.) 1089, WORK. The law that disobedience to the employer's

140 Am. St. Rep. 645, 21 Ann. Cas. 370. The rule in situations inherently dangerous is con- telephone company is alleged to have sent de. tributory negligence does not apply, where the ceased to work in a place which had, to its situation was made dangerous by the employer's knowledge, for two days before the accident, negligence,

[Ed. Note. For other cases, see Master and been unsafe from such conditions. The de Servant, Cent. Dig. 88 682, 759, 775; Dec. Dig. fendants contend that it was the duty of Ow243(1).]

plaintiff's intestate to repair the dangerous 6. APPEAL AND ERROR 1176(5) DISPOSI. condition; that the work in which he was

TION OF CASE-REVERSAL BY INTERMEDIATE engaged necessarily brought him into an unCOURT.

safe place; that it would be absurd to apply Where the Appellate Division reversed on an erroneous theory of the law a judgment for to these conditions the rule requiring the plaintiff entered on a verdict, that reversal im- master to provide a safe place (Mullin v. plies that the Appellate Division was satisfied Genessee Co. Electric L., P. & G. Co., 202 N. with the facts, and the Court of Appeals will Y. 275, 93 N. E 689); that the rules of the not grant a new trial or remit the case to the Appellate Division, but will affirm the judgment company require each employé, at his own of the trial court.

expense, to provide himself with rubber [Ed. Note. For other cases, see Appeal and gloves, to exercise constant and extraordi. Error, Cent. Dig. $$ 4593, 4594; Dec. Dig.

nary care in all situations where a condition 1176(5).]

of danger is or may be present, as when Cuddeback, J., dissenting.

working in the vicinity of high potential conAppeal from Supreme Court, Appellate ductors, particularly light or power wires, Division, Second Departinent.

and where dangerous conditions exist, parAction by Delia Larkin, as administratrix ticularly in cases where repairs are being of Michael Larkin, deceased, against the made to telephone circuits that are in trou. New York Telephone Company and another. ble, to use such rubber gloves; and that Lark. A judgment of the Trial Term for the plain-lin's death was due to his own carelessness in


handling the telephone wires with his bare, Where it is a matter of using due skill and hands.

care to make the place safe, the employé (1) Two trials of the action have been had, is not an equality with the employer and each resulting in a verdict for the plaintiff. the duty of the master to exercise reasonable On the first appeal the Appellate Division care for the safety of the employé is not rerersed, holding that the deceased was guil- discharged by a general and indefinite waru. ty of deliberate disobedience and disregard of ing that dangerous conditions may arise, rules promulgated for his safety in doing and nothing more, if the employer's negligence work essentially dangerous in its character. causes the dangerous conditions. Ordinary On the second trial proof was adduced that prudence remains the test of reasonable care it was the duty and custom of the telephone and all the burden could not be placed upon company to send a trouble hunter to locate the employé by general rules requiring him the trouble, make tests, and remove danger, to look out for himself, when, as the jury and thus to make the place safe for the might have found was the fact in this case, cable splicer, and that it was negligent in this nothing was done by the employer to enforce regard. The Appellate Division examined compliance with the rule which required rubthe facts sufficiently to hold that such proof ber gloves to be used whenever telephone presented a question for the jury as to wheth- circuits were being repaired (Whittaker v. D. er the telephone company had adopted an & H. Canal Co., 126 N. Y. 544, 549, 27 N. E. unsafe and negligent method of having the 1042), and there was evidence tending to work done (Greif v. Buffalo, L. & R. Ry. Co., show that the rule was not understood to ap205 N. Y. 239, 250, 98 N. E. 462); but it did ply to such work as plaintiff's intestate was not determine whether the proof was suffi- doing, and that it would have been difficult cient to uphold the verdict, because it still if not impossible for him to do this work held that Larkin had violated a rule of the with gloves. company and that plaintiff could not recover [4] Cameron v. N. Y. C. & H. R. R. R. Co., because he was not wearing rubber gloves at 145 N. Y. 400, 40 N. E. 1, holds that the failthe time of the accident. The Appellate Di-ure to discharge a servant for habitual viovision should now examine the facts in all lation of a rule is not negligence on the part

Code Civ. Proc. § 1338. Judgment of an employer, charging him with responsiwas reversed, and a new trial granted, but bility for an accident to a coemployé, due no question of fact was specified in the order to such violation, unless the employer had as being that upon which the reversal was actual or constructive knowledge of such disheld, and it must now be conclusively pre-obedience. In this case the telephone comsumed that the reversal was upon the law. pany knew whether or not it was enforcing

[2] Broadly stated, the reversal is based its rules, and it was not necessary to bring upon this proposition: The employer must home to it knowledge of Larkin's disregard exercise due care to make the place safe of the rule. and obviate all risks, except those inherent (5] The law governing disobedience to to the nature of the work (Smith v. Baker rules of conduct in situations inherently & Sons, (1891) A. C. 325, 362); but he may, dangerous (Flood v. Western Union Tel. Co., if negligent in that regard, escape liability 131 N. Y. 603, 30 N. E. 196; Johnston v. Syraas matter of law if he has promulgated gen- cuse Lighting Co., 193 N. Y. 592, 86 N. E. eral rules requiring the employé to exercise 539, 127 Am. St. Rep. 988) does not control "constant and extraordinary care in all sit- situations made dangerous by the employer's uations where an element of danger is or negligence. Rules that have to do with the may be present," and particularly to use co-ordinated movements of many also stand rubber gloves at all times when making re- in a different category. Absolute obedience pairs to telephone circuits, and the employé to orders insisted upon by public carriers, disregards the rule. If it can be said that for example, may be indispensable to the the inference of negligence on the part of the safety of life and the protection of property employé under such circumstances is so plain (Louisville & I. R. Co. v. Kraft, 156 Ky. 66, that all fair-minded men would be compelled 160 S. W. 803, L. R. A. 1916E, 263); but the to that conclusion upon a consideration of hazards of disobedience are there due to the the facts, the disposition of the case by the nature of the work and not to the place court below was correct. We think that of work. Nor do we hold that the employer the contributory negligence of Larkin was may not discharge his duty to exercise due not so evident that it became a question of care by making and enforcing a specific rule law.

for doing specified work, such as that of [3] This is not a question of assumption the cable splicers, in proper cases. of risk, but of negligence merely. Schlem In this case questions of negligence and mer v. Buffalo, R. & P. Ry. Co., 220 U. S. contributory negligence were presented re590, 595, 596, 31 Sup. Ct. 561, 55 L. Ed. 596. quiring careful consideration by the triers of Assumption of risk puts the employé on an fact. It cannot be said as matter of law equality with the employer (Texas & Pac. Ry. that no recovery can be had upon any view Co. v. Howell, 224 U, S. 577, 582, 32 Sup. which can properly be taken of the facts Ct. 601, 56 L. Ed. 892), and at common law which the evidence tends to establish. The requires a ruling in favor of the latter. questions were for the jury and not for the



court. Gardner v. Mich. Cent. R. R. Co., 150, provide for weighing or determining the conU. S. 349, 361, 14 Sup. Ct. 140, 37 L. Ed. 1107. tingency of the widow's remarriage-which

[6] The reversal upon the law implies that would bring about a cessation of the paythe Appellate Division has examined the ments to her. facts, and is satisfied therewith, but finds The order appealed from should be affirm. that on the law the deceased was guilty of ed, with costs against the State Industrial contributory negligence. This court should Commission. neither grant a new trial nor remit the case to the Appellate Division. Middleton v.

POUND, J. (dissenting). It must be reWhitridge, 213 N. Y. 499, 514, 108 N. E. 192, membered that we are construing a workAnn. Cas. 1916C, 856.

men's compensation law with its usual inIt follows that the order appealed from cidents. The scheme of the statute is reasonshould be reversed, and the judgment of the ably comprehensive. Section 25 provides that trial court affirmed, with costs in this court the commission may, in the interest of jusand in the Appellate Division.

tice, award to the injured person, or to the

beneficiaries in case of death, a lump sum in HISCOCK, C. J., and CHASE, COLLIN, lieu of periodical payments. Section 27 covHOGAN, and CARDOZO,

ers cases only where periodical payments are CUDDEBACK, J., dissents.

awarded and payment thereof is assumed by

the state fund by a deposit of the present Order reversed, etc.

value thereof in trust. One lump sum pay

ment is made under section 25 and the case (220 N. Y. 579)

is closed. Periodical payments are continuerl ADAMS et al. v. NEW YORK, O. & W. RY. under section 27 for the full period of lia

bility. CO.

Death is a personal injury within

the meaning of the statute (Crapo v. City of (Court of Appeals of New York. Jan. 30, 1917.) Syracuse, 183 N. Y. 395, 76 N. E. 465), which MASTER AND SERVANT 383 WORKMEN'S makes it possible, under section 27, to comCOMPENSATION ACT-CONSTRUCTION.

pute the present value of future payments, Workmen's Compensation Law (Consol. Laws, c. 67) $ 27, requiring a deposit by the "with due regard to life contingencies.” The employer and self-insurer of money to meet fu- contingency of remarriage in case of widows ture payments of an award, does not apply to an comes plainly within the spirit of the statute award made to widow, since it fails to provide as well as its letter, and the statute clearly for the contingency of the widow's remarriage.

means that due regard must be given to it. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. Om383.)

Every reason for permitting the present val

ue of all future payments to be computed in Pound, J., dissenting.

cases of life interests applies to life interests Appeal from Supreme Court, Appellate Di- subject to the contingency of remarriage. vision, Third Department.

Actuarial science determines the probabilities Proceedings by Ida Adams and others for of remarriage from experience tables, as the compensation under the Workmen's Compen-expectation of life is determined. The Indussation Law, opposed by the New York, On-trial Commission may (section 67) adopt reatario & Western Railway Company, employer sonable rules to carry into effect the provi. and self-insurer. From an order of the Su- sions of the law and the collection, mainte preme Court (161 N. Y. Supp. 919), reversing nance, and disbursement of the state insuran order of the Industrial Commission, the ance fund. The Northampton table of morCommission appeals. Affirmed.

tality rests upon the observations of the popSee, also, 162 N. Y. Supp. 1109.

ulation of a single English town. It was Egburt E. Woodbury, Atty. Gen. (E. c. long in use under the General Rules of PracAiken, Deputy Atty. Gen., and Robert w.tice. The same is true of the Carlisle table Bonynge, of New York City, of counsel), for from which the value of life estates is com

General appellant. C. L. Andrus, of Stamford, for puted in our courts to this day. respondent New York, O. & W. Ry. Co. Mer- Rules of Practice, 70. In the present perwin K. Hart and R. A. Mansfield Hobbs, both number of widows of a given age out of a

fected stage of vital statistics the probable of New York City, for various interveners.

given number who will remarry in a given

period may be determined with essential acCUDDEBACK, J. The order appealed curacy as any other life contingency may be from which required the deposit in the state determined. The remarriage table of the fund by the employer and self-insurer of Dutch Royal Insurance Institution, which the money to meet the future payments of governs the awards and payments under the an award was properly reversed at the Ap- provisions of the Dutch Compensation Law, pellate Division, for the reason that section was properly adopted by the commission as 27 of the Workmen's Compensation Law the only experience table of the kind ap (Cons. Laws, c. 67), which requires such de- plicable to our conditions, and it will serve posit, does not apply to an award made to a until it is corrected by local experience. widow. It does not contemplate and fails to The order of the Appellate Division should

be reversed, and that of the Industrial Com- , bis death. The Trial Term and the Appelmission affirmed.

late Division have thought that there was

no evidence which would permit a jury to HISCOCK, C. J., and CHASE, COLLIN, say that the motorman, and therefore the HOGAN, and CARDOZO, JJ., concur with defendant represented by him, was guilty of CUDDEBACK, J. POUND, J. reads dis

any negligence which caused the accident. senting memorandum.

We disagree with this view, and think that Order affirmed, etc.

there was such evidence. The testimony

which leads us to this view would have per(220 N. Y. 34)

mitted a jury to find, amongst others, the GAFFNEY v. NEW YORK CONSOL. R. Co. following facts: (Court of Appeals of New York. Jan. 9, 1917.)

Intestate and his motorman were directed 1. MASTER AND SERVANT Om 286(32) INJU

to proceed to one of defendant's electric RIES TO SERVANT-EVIDENCE-NEGLIGENCE. | motorcars which was lying at a terminal “to

In an action for the death of a conductor, prepare it to take it out” upon the road for evidence held sufficient to take to the jury the

service. A hose was hanging down from question of the motorman's negligence in starting the car from the barn without signal from the front end of this car which concededly the conductor and without warning, while the needed adjustment, and in answer to ques. conductor was in front of the car fastening ations whether it was part of the duties of a loose brake hose, which there was evidence to guard or conductor "if a hose was hanging show was part of his duty.

[Ed. Note. For other cases, see Master and down to see the hose was fastened on the Servant, Dec. Dig. Om 286(32).)

dummy coupler before the train was taken 2. MASTER AND SERVANT 137(5)-INJURIES out," it was answered: “It is a rule of the TO SERVANT-NEGLIGENCE-RULE.

company that a guard or conductor have to The fact that a rule of the employer forbidding a motorman from starting his car with see if everything is right." After reaching out the signal of the conductor did not apply to the car the intestate got down upon the starting the car from the barn does not excuse track under the front end of the car for the the negligence of the motorman in starting the car without warning when he was charged with purpose of adjusting this hose, and while knowledge that the conductor might be in a

he was in this situation the motorman, with. place of danger.

out ascertaining his situation and without Servant, Cent. Dig: 88 269, 270, 274, 277, 278; car, and, as already stated, ran upon him,

[Ed. Note.--For other cases, see Master and giving any preliminary signal, started the Dec. Dig. Om 137(5).)

causing injuries which resulted in his death. 3. TRIAL 140(2) — INJURIES TO SERVANT QUESTION FOR JURY-CREDIBILITY OF WIT

(1) Under these circumstances we think a NESS-INTEREST.

jury could have said that the intestate was The credibility of the testimony of a motor acting within the line of his duty "to see if man who started his car while the conductor everything was [is] right” before the car was in front of it, and thereby killed the conductor, tending to establish affirmative facts went out, and that the motorman ought to which relieved him of negligence, is a question have anticipated that in the fulfillment of for the jury, since he was deeply interested in this duty intestate might get in the position relieving himself of liability for the conductor's where he was, and therefore should have death.

[Ed. Note.-For_other cases, see Trial, Cent. given him timely notice of his intention to Dig. § 335; Dec. Dig. Om 140(2).]

move the car. I do not overlook testimony

given by the motorman as a witness in beAppeal from Supreme Court, Appellate

half of the defendant that it was the duty Division, Second Department. Action by Mary E. Gaffney, as adminis- and that intestate's duties did not include

of some other employé to adjust this hose, tratrix of Richard Gaffney, deceased, against such operation; also that the rule not to the New York Consolidated Railroad Company. A judgment of the Trial Term entered start a car except upon bell signals from the upon an order of nonsuit granted at the conductor only applied when the car was in close of defendant's evidence was afirmed service on the road, and did not govern the by the Appellate Division (166 App. Div. movement of a car under the circumstances 897, 150 N. Y. Supp. 1087), and plaintiff ap- told him, the motorman, after they reached

prevailing here; · also that the conductor had peals. Judgment of both courts reversed, and new trial granted.

the car, “All right; you can pull out to the

station when ready." There are several reaFrederick S. Martyn, of Brooklyn, for sons, in my opinion, why this evidence was appellant. D. A. Marsh, of Brooklyn, for not conclusive against plaintiff. respondent.

The evidence designed to establish limi

tations upon the duties of intestate and upon HISCOCK, C. J. While plaintiff's intes- the application of the conceded rule requirtate was in the employ of defendant as a ing under most circumstances a signal from conductor and was engaged in adjusting a a conductor before a car was started was hose at the forward end of one of its cars, rather equivocal, and, I think, did not conthe motorman, without any signal, started clusively rebut the evidence already quoted the car and ran over or upon him, causing defining the duties of intestate or establish

cm For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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