there about two minutes started to return, I and that the trolley car turned from Chambers street into Crocheron avenue when the plaintiff was on the second rail from the south as he was returning to the place on the pipes which he left a few minutes before. It could also have found that when the plaintiff was on the first rail from the south he looked towards Chambers street, and at that time no car was in sight, and that he then continued in a diagonal direction with his face turned away from the car, and that the car after entering Crocheron avenue continued at a rapid rate of speed without blowing a whistle or sounding a bell until the plaintiff was struck as stated, as he was leaving the last rail on which the car was proceeding. No claim was made in this court that the question of the defendant's negligence was not one of fact for the jury. The Appellate Division has held as a matter of law that the plaintiff was guilty of contributory negligence, and it has not only reversed the judgment of the trial court, but has dismissed the plaintiff's complaint.

This case was decided, therefore, without the plaintiff making any statement about the accident.

The court also charged the jury:

"This boy is not in law chargeable with the same degree of care for his own safety as if he were an adult. He is only liable for that degree of care which a boy of his age and intelligence and previous experience and training would be expected to employ under the conditions which existed at this time and place. It is for you to say, gentlemen, and not for the court to hold as a matter of law, that this boy was what we call in law sui juris; that is, that he was at this time exercising that degree of control of his actions which would be expected of a person of riper years. You must decide whether he was sui juris, or whether he was not.. If you find that he was sui juris, then you will expect and require that he shall exercise that degree of control which a person of that age would be expected to employ. If he was not, then if his parents or guardians did not exercise a reasonable degree of care for his safety under these conditions, their negligence, if you find that there was any, would be attributable to him."

No evidence was offered on the trial with special reference to the negligence, if any, of the parents or guardians of the plaintiff. The 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 parThe jury blown or bell rung by the motorman, was ents or guardians were negligent. decided in favor of the plaintiff by the jury. were instructed to determine whether the They may have In so deciding the jury were permitted to plaintiff was sui juris. 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. Y. 256, 83 N. E. 15; Jacobs v. Koehler S. G. Co., 208 N. Y. 416, 102 N. E. 519. The plaintiff was offered as a witness in his own behalf and the judge sitting at the Trial Term questioned him, and listened to his answers to questions propounded by his counsel, and then refused to permit him to be sworn as a witness. In so doing he necessarily held that the plaintiff did not sufficiently appreciate the nature of an oath to warrant the acceptance of his testimony as a witness. In presenting the case to the jury the court LARKIN v. NEW YORK TELEPHONE CO.

say:

"He was not permitted, as you notice, to be sworn as a witness in the case by the court, because he did not apparently understand the nature and obligations of an oath. Under the law, a witness who does not understand, a witness whose age is too young, or whose instruction has not been sufficient to guide him and instruct him in the obligations of an oath, cannot be sworn as a witness in a civil action. The result of that would be just the same as if the child had been unable to talk; so young in age that he was unable to speak or to give any statement at all about the accident. So you have to judge of the merits of his claim by the testimony of the other witnesses in the case."

tory negligence.

The judgment of the Appellate Division should be reversed, and the case remitted to that court, for it to consider the weight of evidence, with costs in this court.

HISCOCK, C. J., and COLLIN, CUDDEBACK, HOGAN, CARDOZO, and POUND,

JJ., concur.

Judgment reversed, etc.

et al.

(220 N. Y. 27)

(Court of Appeals of New York. Jan. 9, 1917.) 1. APPEAL AND ERROR 987(4) — REVIEW QUESTIONS OF FACT-STATUTE.

Under Code Civ. Proc. § 1338, providing that on an appeal to the Court of Appeals from a judgment of the Appellate Division reversing a judgment entered on a verdict, it must be conclusively presumed that the reversal was not based on a question of fact, unless the particular question or questions of fact on which it was based are specified, the Appellate Division should examine facts in all cases.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3896; Dec. Dig. 987(4).]

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

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

versed by the Appellate Division (169 App. Div. 162, 154 N. Y. Supp. 804), and plaintiff appeals. Order of Appellate Division reversed, and judgment of trial court affirmed. See, also, 158 App. Div. 414, 143 N. Y. Supp. 578.

A telephone company can escape liability as a matter of law for its negligent failure to make the place of work safe for its linemen, by promulgating a rule requiring constant and extraordinary care in all circumstances, and particularly the use of rubber gloves at all times 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. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1127; Dec. Dig. 289(35).]

3. MASTER AND SERVANT —289(35)—INJU RIES TO SERVANT CONTRIBUTORY NEGLIGENCE DISREGARD OF RULE.

Where a telephone company had established a rule requiring its linemen to wear rubber gloves in all cases when repairing the lines, but there was evidence that the rule was never enforced, and that it was not intended to apply to the work a lineman was doing when killed, which would have been difficult, if not impossible, for him to do with gloves on, it was a question for the jury as to whether he was contributorily negligent in disregarding the rule, so as to relieve the master from its negligent failure to make the place of work safe.

Robinson, of New York City, for respondent
Electric Co.

POUND, J. This is an action to enforce the common-law liability of defendants for negligence. Plaintiff's intestate was a cable splicer employed by the defendant telephone company. His death was due to an electric shock sustained by him in the course of his employment, while he was working on a pole and was about to splice some burned-out wires in a cable tap which ran from the main telephone cable down to a terminal box on the pole. The pole was used jointly by the defendants to carry both telephone and electric light wires, the electric light wires above and the telephone wires below. The 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 condi

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1127; Dec. Dig. 289(35).1

REGARD OF RULE-KNOWLEDGE OF MASTER. Where there was evidence that a telephone company was not enforcing its rules for the protection of employés in places made dangerous by the employer's negligence, it is not necessary to show knowledge of the disregard of the rule by an injured employé to charge the employer with liability.

-

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 284; Dec. Dig. 146.] 5. MASTER AND SERVANT 243(1)—INJURIES TO SERVANT CONTRIBUTORY NEGLIGENCE DISREGARD OF RULE UNSAFE PLACE TO The law that disobedience to the employer's rule in situations inherently dangerous is contributory negligence does not apply, where the situation was made dangerous by the employer's negligence.

WORK.

tion by permitting improperly insulated wires carrying 2,300 volts of electricity to remain in proximity to the telephone wires, so that a contact between them was probable through sagging or breaking of wires. The result of a cross would be the discharge of a deadly current into the telephone wires, fron which an accident to any one working on the telephone wires might reasonably be foreseen. Braun v. Buffalo G. E. Co., 200 N. Y. 484, 94 N. E. 206, 35 L. R. A. (N. S.) 1089, 140 Am. St. Rep. 645, 21 Ann. Cas. 370. The telephone company is alleged to have sent deceased to work in a place which had, to its knowledge, for two days before the accident, been unsafe from such conditions. The de fendants contend that it was the duty of 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, 95 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 gloves, to exercise constant and extraordinary care in all situations where a condition of danger is or may be present, as when working in the vicinity of high potential con

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 682, 759, 775; Dec. Dig. 243(1).]

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4593, 4594; Dec. Dig. 1176(5).]

Cuddeback, J., dissenting.

Appeal from Supreme Court, Appellate ductors, particularly light or power wires, Division, Second Department.

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 trouNew York Telephone Company and another. ble, to use such rubber gloves; and that LarkA judgment of the Trial Term for the plain-in'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 reversed, holding that the deceased was guil- discharged by a general and indefinite warn 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 work done (Greif v. Buffalo, L. & R. Ry. Co., 205 N. Y. 239, 250, 98 N. E. 462); but it did not determine whether the proof was sufficient to uphold the verdict, because it still held that Larkin had violated a rule of the 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 its rules, and it was not necessary to bring home to it knowledge of Larkin's disregard of the rule.

cases.

1042), and there was evidence tending to show that the rule was not understood to apply to such work as plaintiff's intestate was doing, and that it would have been difficult if not impossible for him to do this work with gloves.

[5] The law governing disobedience to rules of conduct in situations inherently dangerous (Flood v. Western Union Tel. Co., 131 N. Y. 603, 30 N. E. 196; Johnston v. Syracuse Lighting Co., 193 N. Y. 592, 86 N. E. 539, 127 Am. St. Rep. 988) does not control situations made dangerous by the employer's negligence. Rules that have to do with the

[2] Broadly stated, the reversal is based upon this proposition: The employer must exercise due care to make the place safe and obviate all risks, except those inherent to the nature of the work (Smith v. Baker & Sons, [1891] A. C. 325, 362); but he may, if negligent in that regard, escape liability as matter of law if he has promulgated general rules requiring the employé to exercise "constant and extraordinary care in all situations where an element of danger is or may be present," and particularly to use co-ordinated movements of many also stand rubber gloves at all times when making repairs to telephone circuits, and the employé disregards the rule. If it can be said that the inference of negligence on the part of the employé under such circumstances is so plain that all fair-minded men would be compelled to that conclusion upon a consideration of the facts, the disposition of the case by the court below was correct. We think that the contributory negligence of Larkin was not so evident that it became a question of law.

[3] This is not a question of assumption of risk, but of negligence merely. Schlemmer v. Buffalo, R. & P. Ry. Co., 220 U. S. 590, 595, 596, 31 Sup. Ct. 561, 55 L. Ed. 596. Assumption of risk puts the employé on an equality with the employer (Texas & Pac. Ry. Co. v. Howell, 224 U. S. 577, 582, 32 Sup. Ct. 601, 56 L. Ed. 892), and at common law requires a ruling in favor of the latter.

in a different category. Absolute obedience to orders insisted upon by public carriers, for example, may be indispensable to the safety of life and the protection of property (Louisville & I. R. Co. v. Kraft, 156 Ky. 66, 160 S. W. 803, L. R. A. 1916E, 263); but the hazards of disobedience are there due to the nature of the work and not to the place of work. Nor do we hold that the employer may not discharge his duty to exercise due care by making and enforcing a specific rule for doing specified work, such as that of the cable splicers, in proper cases.

In this case questions of negligence and contributory negligence were presented requiring careful consideration by the triers of fact. It cannot be said as matter of law that no recovery can be had upon any view which can properly be taken of the facts which the evidence tends to establish. The 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 that on the law the deceased was guilty of contributory negligence. This court should neither grant a new trial nor remit the case to the Appellate Division. Middleton v. Whitridge, 213 N. Y. 499, 514, 108 N. E. 192, Ann. Cas. 1916C, 856.

It follows that the order appealed from should be reversed, and the judgment of the trial court affirmed, with costs in this court and in the Appellate Division.

HISCOCK, C. J., and CHASE, COLLIN,
HOGAN, and CARDOZO,
CUDDEBACK, J., dissents.

Order reversed, etc.

(220 N. Y. 579)

JJ.,

concur.

The order appealed from should be affirmed, with costs against the State Industrial Commission.

POUND, J. (dissenting). It must be remembered that we are construing a workmen's compensation law with its usual incidents. The scheme of the statute is reasonably comprehensive. Section 25 provides that the commission may, in the interest of justice, award to the injured person, or to the beneficiaries in case of death, a lump sum in lieu of periodical payments. Section 27 covers cases only where periodical payments are awarded and payment thereof is assumed by the state fund by a deposit of the present value thereof in trust. One lump sum payment is made under section 25 and the case is closed. Periodical payments are continued

ADAMS et al. v. NEW YORK, O. & W. RY. under section 27 for the full period of lia

CO.

(Court of Appeals of New York. Jan. 30, 1917.) MASTER AND SERVANT 383 WORKMEN'S COMPENSATION ACT-CONSTRUCTION.

Workmen's Compensation Law (Consol. Laws, c. 67) § 27, requiring a deposit by the employer and self-insurer of money to meet future payments of an award, does not apply to an award made to a widow, since it fails to provide for the contingency of the widow's remarriage. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. 383.]

Pound, J., dissenting.

Appeal from Supreme Court, Appellate Division, Third Department.

bility. Death is a personal injury within the meaning of the statute (Crapo v. City of Syracuse, 183 N. Y. 395, 76 N. E. 465), which makes it possible, under section 27, to compute the present value of future payments, "with due regard to life contingencies." The contingency of remarriage in case of widows comes plainly within the spirit of the statute as well as its letter, and the statute clearly means that due regard must be given to it. Every reason for permitting the present value of all future payments to be computed in cases of life interests applies to life interests subject to the contingency of remarriage. Actuarial science determines the probabilities of remarriage from experience tables, as the expectation of life is determined. The Indus

Proceedings by Ida Adams and others for compensation under the Workmen's Compensation Law, opposed by the New York, On-trial Commission may (section 67) adopt reatario & Western Railway Company, employer and self-insurer. From an order of the Supreme Court (161 N. Y. Supp. 919), reversing an order of the Industrial Commission, the Commission appeals. Affirmed.

See, also, 162 N. Y. Supp. 1109. Egburt E. Woodbury, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., and Robert W. Bonynge, of New York City, of counsel), for appellant. C. L. Andrus, of Stamford, for respondent New York, O. & W. Ry. Co. Merwin K. Hart and R. A. Mansfield Hobbs, both of New York City, for various interveners.

CUDDEBACK, J. The order appealed from which required the deposit in the state fund by the employer and self-insurer of the money to meet the future payments of an award was properly reversed at the Appellate Division, for the reason that section 27 of the Workmen's Compensation Law (Cons. Laws, c. 67), which requires such deposit, does not apply to an award made to a widow. It does not contemplate and fails to

General

sonable rules to carry into effect the provi-
sions of the law and the collection, mainte
nance, and disbursement of the state insur-
ance fund. The Northampton table of mor-
tality rests upon the observations of the pop-
ulation of a single English town. It was
long in use under the General Rules of Prac-
tice. The same is true of the Carlisle table
from which the value of life estates is com-
puted in our courts to this day.
Rules of Practice, 70. In the present per-
fected stage of vital statistics the probable
number of widows of a given age out of a
given number who will remarry in a given
period may be determined with essential ac-
curacy as any other life contingency may be
determined. The remarriage table of the
Dutch Royal Insurance Institution, which
governs the awards and payments under the
provisions of the Dutch Compensation Law,
was properly adopted by the commission as
the only experience table of the kind ap-
plicable to our conditions, and it will serve
until it is corrected by local experience.

The order of the Appellate Division should

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

The evidence designed to establish limistations 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

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