Harrigan v. Donegan

1 N.Y.S. 329, 1888 N.Y. Misc. LEXIS 1320

• Court: City of New York Municipal Court
• Decided: June 20, 1888
• Status: Published

Opinion

McGown, J.

In order to entitle the plaintiff to recover herein, it was in■cumbent upon him to show—First, that the plaintiff had sustained the injuries complained of through the negligent or wrongful acts of defendants’ ■employes while acting within the scope of their employment; second, that the persons who caused the injuries were at the time in defendants’ employ. The ■defendants’ counsel requested the trial justice to charge “that, if there were ■other persons than the servants of the defendants, upon the work at the time, and it is not shown affirmatively that it was the defendants’ servants who caused the injury, and it may have been the act of other persons there at the time, that they will find for the defendants.” This the justice declined to charge, and to which the defendants’ counsel excepted. I think the exception was well taken, and that the charge should have been made as requested. There was some evidence before the jury that there were other persons present on the pier besides the two workmen who are charged with having caused the injury complained of, and, if such was a fact, it was right and proper that the •question should have been submitted to the jury, for'them to find, by their ■verdict, whether the injuries were caused by the two workmen of the defendían ts, or whether they were caused by any other persons then present, not in ■defendants’ employ. As I think the exception above referred to well taken, I do not deem it necessary to consider the other questions raised by appellant’s .attorney upon the appeal. A new trial ordered, costs to abide the event.

Browne and Ehrlich, JJ., concurred.