Nyboe v. Stern

Appellate Terms of the Supreme Court of New York

Nyboe v. Stern

116 N.Y.S. 660

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 7, 1909

StatusPublished

This text of 116 N.Y.S. 660 (Nyboe v. Stern) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Nyboe v. Stern, 116 N.Y.S. 660 (N.Y. Ct. App. 1909).

Pincite

Opinion

PER CURIAM.

The action was brought under the employer’s liability law. The plaintiff was a fireman in defendants’ slaughterhouse. Ón the morning of the accident he found a written order from the chief engineer directing him to clean out a boiler. He went into the drying room with a wrench in his hand to open the valve to blow out the boiler. As he bent down to apply the wrench, a large iron cover standing against' a partition near by fell forward upon his foot, causing the injury. This cover was of cast iron, 5 feet in diameter, 1% inches •thick, and weighed 1,500 pounds. The question of the" plaintiff’s contributory negligence was closely contested, and the-case went to the jury. The court charged:

• “It is the duty of an employer to see that the ways, works, and machinery are in perfect condition and to furnish a safe place for an employé to work. That is the law.”

The defendants’ counsel, in excepting, said:

“I take an exception to that part of your charge where you say it Is the law that an employer shall keep ways, works, and machinery in perfect condition. The law imposes the duty, and I request your honor to charge the jury, in modification of that, that it is the duty imposed by law upon an employer to keep his ways, works, and machinery in a reasonably safe condition as a reasonably prudent man would keep them; that the law does not oblige him to keep them in an absolutely perfect condition.

“The Court: I charge as I did charge. You are granted an exception.”

This defendants’ counsel took.

[661]*661The charge was error, and clearly prejudicial error. Its effect in this controversy was practically to take from the jury the question of contributory negligence, plaintiff’s freedom from which he was bound to establish, and also was equivalent to a declaration that the plaintiff was negligent; for, of course, if the ways, works, and machinery had been in an absolutely perfect condition, the accident would not have happened. Under the charge it is difficult to see how the jury upon any theory could have rendered a verdict for the defendants.

The judgment must be reversed, and a new trial ordered, with costs to appellants to abide the event.

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PER CURIAM.

The action was brought under the employer’s liability law. The plaintiff was a fireman in defendants’ slaughterhouse. Ón the morning of the accident he found a written order from the chief engineer directing him to clean out a boiler. He went into the drying room with a wrench in his hand to open the valve to blow out the boiler. As he bent down to apply the wrench, a large iron cover standing against' a partition near by fell forward upon his foot, causing the injury. This cover was of cast iron, 5 feet in diameter, 1% inches •thick, and weighed 1,500 pounds. The question of the" plaintiff’s contributory negligence was closely contested, and the-case went to the jury. The court charged:

• “It is the duty of an employer to see that the ways, works, and machinery are in perfect condition and to furnish a safe place for an employé to work. That is the law.”

The defendants’ counsel, in excepting, said:

“I take an exception to that part of your charge where you say it Is the law that an employer shall keep ways, works, and machinery in perfect condition. The law imposes the duty, and I request your honor to charge the jury, in modification of that, that it is the duty imposed by law upon an employer to keep his ways, works, and machinery in a reasonably safe condition as a reasonably prudent man would keep them; that the law does not oblige him to keep them in an absolutely perfect condition.

“The Court: I charge as I did charge. You are granted an exception.”

This defendants’ counsel took.

[661]*661The charge was error, and clearly prejudicial error. Its effect in this controversy was practically to take from the jury the question of contributory negligence, plaintiff’s freedom from which he was bound to establish, and also was equivalent to a declaration that the plaintiff was negligent; for, of course, if the ways, works, and machinery had been in an absolutely perfect condition, the accident would not have happened. Under the charge it is difficult to see how the jury upon any theory could have rendered a verdict for the defendants.

The judgment must be reversed, and a new trial ordered, with costs to appellants to abide the event.

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Bluebook (online)

116 N.Y.S. 660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nyboe-v-stern-nyappterm-1909.