Bridget A. Gardner, as Administratrix, etc., of Joseph P. Gardner, Deceased, Respondent, v. Schenectady Railway Company, Appellant

Bridget A. Gardner, as Administratrix, etc., of Joseph P. Gardner, Deceased, Respondent, v. Schenectady Railway Company, Appellant. Third Department, September 17, 1908. Master and servant — negligence —, death by electric current —evidence . — similar defects — defective gloves — failure of servant to report defect. In an action to recover for the death of one employed to- trim electric lamps caused by the alleged negligence of the master-in failing to equip a lamp with a proper hood,, it is error to admit evidence that hoods upon other lamps were defective. In such action it is error to submit to the jury the question of the defendants ■ negligence- in. furnishing the intestate with Old and porous gloves, for he had ’ the better opportunity of ascertaining whether they were defective. Evidence examined, and held, that a verdict for the plaintiff was against the weight of evidence. , A master should not be charged with notice of a’ defect, in an appliance, when it - was the duty of the intestate to report it, and he failed to do so. Appeal, by the defendant, the Schenectady Railway Company, from a judgment'of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schenectady on the, 14th day of October, 1907, upon the verdict of' a''jury for $5,000, and also from an order entered in said clerk’s office on the 11th day of November, 1907, denying the defendant’s motion for a new trial made upon the minutes. The plaintiff’s intestate, employed by the defendant as an electric lamp trimmer, was killed by an electric shock. The negligence charged was that the hood of the lamp had no .switch or cut-out, so that it could be safely handled, and that the intestate had been furnished with old gloves which were defective and porous, etc. Daniel Naylon, Jr., for the appellant. Edgar T. Brackett, for the respondent. [MAJORITY — •Per Curiam :] •Per Curiam : This judgment should be reversed for the admission over the' defendant’s objection of the evidence of the witness Ripley to the .effect that other hoods upon the defendant’s line were defective,. The court, improperly submitted to the jury the question of defendant’s negligence in furnishing improper gloves, inasmuch as the deceased had the better opportunity of ascertaining whether the gloves were defective. The judgment should also be reversed as against the weight of evidence. Defendant has been charged with negligence in the killing of plaintiff’s intestate where the manner of the killing is at the best speculative. The verdict has been reached upon the testimony of a brother-in-law whose evidence is not sufficiently credible to sustain a verdict in view of the testimony which he gave upon the former trial. The report of the deceased upon the morning of the accident failing to disclose any defect in the lamp at which he was killed the night before either negatives the evidence that the lamp was not burning the night before or shows negligence on the part of the deceased in failing to discover the defective lamp. The company should not be charged with notice of a defect whicli it was the duty of the deceased to report and which he failed to report. Moreover, it has not been proven that the failure of the light to burn the night before was due to any defect which caused the decedent’s death upon the following night. All concurred. Judgment and order reversed and new trial granted, with costs to appellant to abide event.