Wiesnewsky v. E. E. Smith Contracting Co.

Appellate Division of the Supreme Court of New York

Wiesnewsky v. E. E. Smith Contracting Co.

168 A.D. 925, 152 N.Y.S. 1149

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 15, 1915

StatusPublished

This text of 168 A.D. 925 (Wiesnewsky v. E. E. Smith Contracting Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wiesnewsky v. E. E. Smith Contracting Co., 168 A.D. 925, 152 N.Y.S. 1149 (N.Y. Ct. App. 1915).

Pincite

Opinion

Judgment and order affirmed, with costs. No opinion. Jenks, P. J., Thomas, Stapleton and Rich, JJ., concurred; Burr, J., dissented upon the grounds, first, that the verdict is against the weight of evidence; second, that there is no evidence which would justify the charge of the court that the jury might find that the master “promised to remove the danger which created the risk." The danger which created the risk was the conduct of the boy Carr. This conduct could only be completely cured and the danger removed by the discharge of the boy. Defendant’s foreman never promised to do this. He did nothing more than, in substance, to promise that he would admonish the boy to be more careful; that he would watch him; that he would attend to him. Admonition is not the equivalent of control, nor watchfulness the same as removal.

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Judgment and order affirmed, with costs. No opinion. Jenks, P. J., Thomas, Stapleton and Rich, JJ., concurred; Burr, J., dissented upon the grounds, first, that the verdict is against the weight of evidence; second, that there is no evidence which would justify the charge of the court that the jury might find that the master “promised to remove the danger which created the risk." The danger which created the risk was the conduct of the boy Carr. This conduct could only be completely cured and the danger removed by the discharge of the boy. Defendant’s foreman never promised to do this. He did nothing more than, in substance, to promise that he would admonish the boy to be more careful; that he would watch him; that he would attend to him. Admonition is not the equivalent of control, nor watchfulness the same as removal.

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Bluebook (online)

168 A.D. 925, 152 N.Y.S. 1149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wiesnewsky-v-e-e-smith-contracting-co-nyappdiv-1915.