Beichert v. Reed

47 N.Y.S. 119, 20 A.D. 635

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 28, 1897
• Status: Published

Opinion

HERRICK, J.

It seems to me unnecessary to consider the evidence in relation to the tongs, or what the duty of the defendants, required them to do in relation to furnishing them, or as to whether the foreman stood in the place of the defendants, and his act in not producing the tongs, and furnishing them to the plaintiff and the other workmen, was the act of the defendants, or whether it was the act of a fellow servant, because it appears to me from an examination of the evidence that the immediate and proximate cause of the injury to the plaintiff was the manner in which he and his fellow workmen, engaged in handling the rails, dropped or rather threw from them the rail which caused the injury. If they had laid the rail down, an accident would not have happened. The taking of these rails out of the ditch, and removing them to the side of the road, a distance of 10 or 12 feet, was not labor that it required any great skill or intelligence to perform. The immediate cause of the accident was throwing the rails down a distance of 2 or 3 feet upon other rails, which would naturally cause, "and did cause, a rebound. This act was one in which'' tüe' plaintiff participated with his fellow -workmen,-and it was the immediate cause of the injury, and for it the defendants cannot be held responsible. Without discussing the other questions argued before us, but because of the act of the plaintiff himself, the judgment and order should be reversed, and a new trial granted; costs to abide the event. All concur.