Barber v. . Smeallie

117 N.E. 611, 221 N.Y. 407, 1917 N.Y. LEXIS 1315

• Court: New York Court of Appeals
• Decided: October 23, 1917
• Status: Published

Opinion

Pound, J.

Plaintiff was injured by the act of a fellow-servant. Defendants’ liability is based upon the rule which requires the master to use reasonable care to employ competent men.’ .The incompetency complained of and brought home to defendants consisted in the inability of plaintiff’s fellow-servants to understand the English language. No other incompetency which made their presence a danger to plaintiff was brought to defendants’ notice. Incompetency of a servant may be due to bis inability to -understand the English language (Beers v. Isaac Prouty Co., 200 Mass. 19), but no rule imposes liability upon an employer merely because he hires men who do not understand English. (Friberg v. Builders Iron & Steel Co., 201 Mass. 461.) The incompetency must be the proximate cause of the injury, the injury the result of the incompetency. Plaintiff’s injury was not due to the inability of the person who caused it to understand the English language. It may have been due to lack of sufficient intelligence on the part of such person to understand that he should not start the pump while plaintiff was down stairs, but it does not appear that defendants were chargeable with notice that the man was thus mentally deficient.

The judgment appealed from should be reversed and a new trial granted, with costs to abide the event.

Hiscock, Ch. J., Cuddeback, McLaughlin and Andrews, JJ., concur; Chase and Hogan, JJ., dissent.

Judgment reversed, etc.