Gardner v. Schenectady Railway Co. , 98 N.Y.S. 1034 ( 1906 )

Per Curiam :

' The evidence is clear that the intestate was employed as a skilled workman, familiar with the kind of'business, and that he should either' have worn rubber boots, or rubbers, or used the insulated stool, all of which were present in his wagon with him at the‘time. He did not. wear any rubbers, or rubber boots, and there is no claim that he had the insulated stool in use, A witness claims that he did not use the rubber boots or insulated stool when instructing the decedent, -but admits that he told him that he ought to take the stool with him, as that was what it was for: A witness, in trimming a lamp under like circumstances, where the new style of hood was used, ’ suffered a .shock because he forgot to turn off one of the-switches. - It does not appear here whether this in jury was caused by the failure of the decedent to turn off one or both of the switches, or whether the wire leaked or what caused the injury. The ground under which the decedent was working was more or less damp at the time. There is not sufficient evidence of any negligence on the part of the defendant. Some evidence tends to' show that this glove may have been in use for two months previous, and that a glove was good for a week, several weeks, a month, two months, or 'six months, depending upon the circumstances and the manner of its use. There is no proof of any defect in the glove prior to the accident, and for many days previous to the accident it was in the custody and control of the decedent, and it is quite clear that in fact a new pair of gloves was furnished him when he began work a few weeks before the accident. There is no proof of-any defects in the hood; no other defect is claimed so far as the line itself was concerned. The metallic tag could only cause connection from the hood to the lamp, and its presence was immaterial if the hood was a proper one and the switch in proper order. It is true it was an old style hood, but one in general use at the time. The only evidence tending to show any defect in the hood was the statement of one witness that a previous superintendent had condemned the hoods, and that at some time-in 1900 he heard that superintendent making a statement that the hoods were no good — that they were not safe. This was not evidence against the defendant. It was received over the defendant’s objection and exception. Therefore, for the reason that the verdict is not fairly sustained by the evidence, and for the erroneous admission of the declarations of the former superintendent, the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Parker, P. J., not voting, and Chester, J., dissenting; Cochrane, J., concurred in result.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.