Probst v. Delamater

• Decision Date: 30 October 1885
• Citation: 100 N.Y. 266,3 N.E. 184
• Parties: PROBST v. DELAMATER.
• Court: New York Court of Appeals Court of Appeals

100 N.Y. 266

3 N.E. 184

PROBST

v.DELAMATER.¹

Court of Appeals of New York.

Filed October 30, 1885.

E. J. Plumley, for appellant, Addison H. Delamater.

W. L. Jones, for respondent, Andrew Probst.

RUGER, C. J.

We are of the opinion that no exception appears in the case requiring the reversal of the judgment. The question as to the contributory negligence of the plaintiff was one of fact, and was properly submitted to the jury upon conflicting evidence. The charge of negligence against the defendant was predicated upon two specifications, viz.: the first importing that the injury to plaintiff was occasioned by the use of old and defective appliances in the prosecution of the work in which he was employed, and the other charging the defendant with knowingly employing improper, drunken, and incompetent assistants to aid in such work. Some evidence was given in support of both of these specifications. Miller v. New York Cent. & H. R. R. Co., 99 N. Y. 657.

An exception was taken to the admission of evidence tending to show that the engineer in charge of the hoisting apparatus on the morning in question was intoxicated. The objection taken was stated to be that the evidence was immaterial and did not tend to show that he was an unsafe engineer. It is quite certain that the intoxication of a person having charge of machinery used in hoisting heavy materials, liable from their great weight to break away and fall, is quite material upon an issue as to who was in fault for an injury occurring from such a fall, and tended legitimately to prove the incompetency of such engineer to perform the duties with which he was charged. Whether the proof was sufficient to establish the allegation, or required additional evidence to charge the defendant with knowledge of the fact, was quite a different question, and was not raised by the objection. The exception, therefore, was not well taken.

It may also be said that no motion was made to strike out this evidence; neither was any request made to the court to charge in reference thereto. It seemed to be assumed by all parties that the evidence of incompetency from drunkenness was insufficient to support the charge of negligence, and the case was not put to the jury on that ground.

An exception was also taken to the refusal of the court to charge that the defendant was entitled to any doubt which the jury may have. This exception, within the rule laid down in Seybolt v. New York, L. E. & W. R. Co., 95 N. Y. 570, was not well taken.

The only remaining exception requiring notice is that taken to the charge stating ‘that it was the duty of the defendant to furnish a safe and secure rope or cable at the commencement of the work; that if they find this cable was not a safe and secure cable in the first instance, the defendant was guilty of negligence.’ The rule as stated was undoubtedly broader than the authorities would justify; and if the attention of the court had been called to the point, and it had then refused to charge the proper qualifications of the...