Thomas J. Landy, Respondent, v. William L. Goetze and Fred Bohl, Copartners in Trade, Doing Business under the Firm Name and Style of Goetze & Bohl, Appellants

Thomas J. Landy, Respondent, v. William L. Goetze and Fred Bohl, Copartners in Trade, Doing Business under the Firm Name and Style of Goetze & Bohl, Appellants. Third. Department, November 25, 1914. Blaster and servant — negligence — injury by removal of supports from platform — evidence — cross-examination tending to show contributory negligence. Where in an action to recover for personal injuries alleged to have been caused by an order of the defendant directing the removal of supports of a platform upon which the plaintiff was working, it appears that the plaintiff heard the direction of the defendant, it is reversible error to refuse to allow the defendant when cross-examining the plaintiff to ask him if he understood that the order involved the removal of the supports. This, because if the plaintiff understood that the posts were to be removed he was called upon to take care of himself and might be found guilty of contributory negligence. Howard, J., dissented. Appeal by the defendants, William L. Goetze and another, from a judgment of the County Court of Albany county, entered in the office of the clerk of said county on the 23d day of June, 1914, upon the verdict of a jury for $1,600, and also from an order entered in said clerk’s office on the same day, denying defendants’ motion for a new trial made upon the minutes. William H. Foster [Andrew J. Nellis of counsel], for the appellants. Robert W. Scott [Joseph A. Murphy of counsel], for the respondent. [MAJORITY — Kellogg, J.:] Kellogg, J.: Plaintiff, an employee of the defendants in demolishing a building, claims that while he was engaged in tearing down a wall other employees of the defendants working with him caused the posts supporting the timbers upon which he was standing to be removed, and alleges that such removal was by the direction of one of the defendants as the result of an order carelessly given. The plaintiff heard the defendant direct the other workmen “to clean all the rubbish off the floor, and posts,” and contends that the other workmen understood this to be an order to remove the posts, which removal caused his injury. The jury have found that the direction so given was an order to remove the posts, or was so carelessly given that it might well have been so understood by the workmen. The plaintiff, upon cross-examination, was asked, in substance, whether when he heard the order he understood that it required anything to be removed except the rubbish. The plaintiff’s objection to the question was sustained and exception taken. It is manifest that if the plaintiff understood that the workmen were directed to remove the posts he cannot complain because they understood it in the same way. If he understood the posts were to be removed he was called upon to take care' of himself; his understanding, therefore, bore directly upon the question whether he was guilty of contributory negligence. The judgment should, therefore, be reversed and a new trial granted, with costs to the appellants to abide the event. All concurred, except Howard, J., dissenting. Judgment and order reversed and new trial granted, with costs to appellants to abide event.