Muriel v. Porto Rico-American Steamship Co.

243 A.D. 565

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 15, 1934
• Status: Published

Opinion

Order setting aside verdict in an action for wrongful death as a consequence of respondent’s negligence in respect of the place of work where plaintiff’s decedent, a fireman on a ship, was working in a boiler, reversed on the law and the facts, with costs, and motion denied, provided that within ten days from the entry of the order herein plaintiff stipulate to reduce the verdict to $4,000, in which event the verdict as so reduced is reinstated and judgment directed to be entered thereon, with costs. In default of so stipulating, the order is affirmed, with costs to respondent, on the ground that the verdict is excessive. The prior decisions of this court eliminated every causé of death as a basis for liability except asphyxiation due to heat exhaustion or the presence of poisonous gases, that is, lack of requisite good air in the place into which respondent sent the decedent to work. There was an ample evidentiary basis to justify the jury in excluding heat exhaustion as the cause of asphyxiation, and this left a just basis for a finding by the jury that asphyxiation, due to the presence of poisonous gases, or lack of proper air conditions, was the cause of the decedent’s death, and that this cause was chargeable to the respondent’s negligence. The appeal from the order denying plaintiff’s motion for a reargument is dismissed. Lazansky, P. J., Hagarty, Carswell, Tompkins and Davis, JJ., concur.