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, May 2, 1906. Hegligence — death of lamptrimmer by electricity —• failure to show negligence of defendant — evidence—when .declarations of superintendent not admissible against corporation. A skilled workman employed to trim electric lamps, while engaged in his employment, was killed by the current. The evidence did not show whether the death was caused by the failure of the decedent to .switch off the current or whether the current leaked, or in fact what caused the injury. Although the insulated glove used by the defendant showed a hole near the thumb, there was no proof of any defect therein prior to the accident, and the gloves were furnished to the defendant a few weeks before, and had been in his custody and control. Held, that the negligence of the defendant was not established; That it was reversible error to admit evidence of declarations of defendant’s superintendent stating that the hoods used on the lamps were “ no-good’’ and “not safe.” Chester, J., dissented. ' 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 13th day of April, 1905, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 9th day of May, 1905, denying the defendant’s motion for .a new trial'made Upon the minutes. The plaintiff’s intestate was killed by a current of electricity passing through his body while he was employed as an electrical streetlamp trimmer by the defendant. The duties of a trimmer were (1) to trim the lamps during the day. when the current is- off, and (2) to go around nightly and see. if "the lamps are burning, and if not try to iñake them burn while the current is on. The deceased was engaged in trimming a lamp about seven o’clock p.. m. October-20, 1904, while the current was on, and was killed by a current qf electricity which apparently passed through a hole of the right-hand thumb.of the rubber glove he was wearing at the time. The action is under the Employers’ Liability Act (Laws of 1902, chap. 600), and ' the grounds of negligence against the defendant are that the lamp and.hood and appliances connecting therewith were of an old construction, defective and not properly insulated ; that the' glove furnished was defective, and that the decedent was not given proper instructions. - Daniel Naylon, Jr., and Edward C. Whitmyer, for the appellant. William Dewey Loucks, for the respondent. [MAJORITY — Per Curiam :] 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.