Teetsel v. Simmons

34 N.Y.S. 972, 95 N.Y. Sup. Ct. 621, 69 N.Y. St. Rep. 35, 88 Hun 621

Opinions

HERRICK, J.

It seems to me that the evidence in this case establishes that the switch board upon which the plaintiff was standing at the time of the accident was placed there to be used for the purposes of a switch board only, and not as a part of a passage way for the workmen of one room or part of the ice house to the other; that its occasional use as a passageway by some of the workmen was not in pursuance of any custom, or by any authority of the defendants; that the board was reasonably sufficient for the purpose for which it was intended it should be used,—that is, as a switch board; that the accident happened by reason of the careless act of a fellow servant, while not in the performance of any duty necessary to be performed in the course of his employment. It follows from these conclusions that the judgment should be reversed.

Judgment reversed, and a new trial granted; costs to abide the event.

MAYHAM, P. J., concurs.