101 N.Y. 396, Marsh v. Chickering

Citation:101 N.Y. 396
Party Name:WILLIAM E. MARSH, Respondent, v. CHARLES F. CHICKERING et al., Appellants.
Case Date:February 12, 1886
Court:New York Court of Appeals

Page 396

101 N.Y. 396

WILLIAM E. MARSH, Respondent,

v.

CHARLES F. CHICKERING et al., Appellants.

New York Court of Appeal

February 12, 1886

Argued January 26, 1886.

COUNSEL

Page 397

Theodore H. Swift for appellants. To enable plaintiff to recover, he was bound to show that the injury was sustained through the defendants' negligence, and that there was no contributory negligence on his part. (78 N.Y. 483; 58 id. 248; 84 id. 58; 98 id. 198, 280.) Defendants were not bound to furnish plaintiff with the best, most approved or most recent machinery or tools. (15 Weekly Dig. 103; 98 N.Y. 274, 562.) If defendants' superintendent was negligent they were not liable, he being a co-employe with plaintiff. ( Crispin v. Babbit, 81 N.Y. 516; McCosker v. L. I. C. R. R. Co., 84 id. 77; 70 id. 171, 174-176.) A knowledge of the dangerous character of a tool an employe uses is fatal to his recovery for injury from its use. ( Bell v. A. & W. R. R. Co., Alb. L. J., April 10, 1883; Seymour v. Maddox, 16 Q. B. 326; Seaver v. B. & M. R. R. Co., 14 Gray, 466.) In an action like the case at bar the master must be at fault and know of it, and the servant must be free from fault to insure a recovery. ( Wright v. N.Y. C. R. R. Co., 25 N.Y. 562; 12 R. I. 112; 34 Am. Rep. 615; 113 Mass. 396; 98 N.Y. 562; 32 Alb. L. J. 134; Leonard v. Collins, 70 N.Y. 90.) Plaintiff's continued use of the ladder was negligence. (1 New Eng. Rep'r, 124.) The court erred in allowing plaintiff to prove that the day after the accident defendants had hooks put on the ladder. ( Baird v. Daly, 68 N.Y. 547; Salters v. D. & H. C. Co., 3 Hun, 338; Morrel v. Peck, 24 id. 37; 31 id. 28.) Plaintiff's contributory negligence was a question of law. ( Davis v. Third Ave. R. R. Co., 41 N.Y. Super. Ct. 31; Baulec v. N.Y. C. R. R. Co., 59 id. 356; Whart. on Neg., § 238; 8 C. B. [ N. S.] 568; 98 N.Y. 280.)

A. R. Dyett for respondent. The fact that plaintiff knew of the danger of using the ladder and continued to use it was not contributory negligence as matter of law, in view of defendants' promise to repair it after notice to them of the defect. ( Fuller v. Jewett, 80 N.Y. 46; Flike v. B. & A. R. R. Co., 53 id. 549, 553; Booth v. B. & A. R. R. Co., 73 id. 38; Mehan v. Syr. & B. R. R. Co., id. 585.) Acts the

Page 398

master is bound to perform for the safety and protection of his employes cannot be delegated so as to exonerate the master from...

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