
    Albert Henry Date, Respondent, v. The New York Glucose Company, Appellant.
    
      Negligence—proof of negligent conduct, on other occasions, of the workmen who injured the plaintiff— when an objection is too late — admission of part of an answer before taking objection — one objection to a certain line of testimony is suf- ' ficient — direction of a foreman, how far as matter of law an excuse to plaintiff.
    
    In an action brought to recover damages for personal injuries, it appeared that the plaintiff was employed as an oiler in the defendant’s factory; that on the occasion in question, while he was working at his occupation upon a ladder, ^ the foot of which he had placed, pursuant to instructions from his foreman, against the rail- of a car track extending through the factory, a truck was ' pushed against the ladder, knocking it from under" the plaintiff and. causing him to sustain injuries. The negligence charged against the defendant was' that the men pushing the truck were foreigners, unable to speak or understand English, and were in that respect incompetent fellow-servants.
    Upon the trial the plaintiff called a witness to testify to another previous accident occasioned by the fault of these men. After the witness had testified apparently without objection to the following, “The man came along with a starch truck and he ran into him,” the following occurred: “Defendant’s counsel— I object to that as incompetent. I move to strike it out on the ground that it is an independent, collateral transaction under entirely different circumstances; the facts are not stated, and, therefore, incompetent. The Court—I will take it'as bearing on the question oí whether in fact ¡these men were com-. p'etent fellow-workmen. Defendant excepts.” Then followed a narration of-the circumstances surrounding the transaction, referred to, before the objection, indicating carelessness on the-part of the men, and also tending to indicate that they could not understand English. At the close of the testimony of the witness the following occurred: “Defendant’s counselmove that -this last' witness's evidence b'e stricken out on the ground that it has' not been proven that they were the same men who were around the truck at the time of the accident,' and what occurred on the dock has not been connected. Motion denied; exception.”
    
      Held, that, as the. plaintiff’s case rested upon the proposition that the. men did not understand English, and was not based upon the reckless conduct of the men on previous occasions, of which the defendant either had, or ought to have had knowledge, the admission of the testimony above recited Was improper, particularly as it did not appear that knowledge of the transaction testified to was brought to the defendant’s attention;
    That the ruling of the court could not be sustained because [the first part of the objectionable testimony had come in without objection, as the motion to strike it out was not denied on the ground that it was made too late and because the ■ first part of the objectionable testimony was harmless as compared with the ., evidence which followed the statement by the court of the theory on which he would admit it;
    That the exception taken by the defendant’s1 counsel to the ruling of the court that it would receive■ the .- evidence, as bearing upon the question whether the men Were competent fellow workmen was sufficient to protect the defendant’s rights; '
    That where the court has announced-that it will -receive a certain class of testimony for a purpose stated, to which the party excepts, he is not bound thereafter to- take further objection to that same class of .testimony in order to protect hi's rights; ■
    That it was improper for the court' to charge that the direction given to the plaintiff by his foreman that he should place the foot of the ladder against the railroad track excused the plaintiff, as matter of law, from any imputation of negligence, for. the reason" .that the danger of resting the ladder, against the ..railroad track was as obvious to the plaintiff as to the foreman and for the further reason that in giving such direction the foreman Was not discharging any of the duties which the defendant owed to the plaintiff, but was acting as a fellow-servant in respect to a detail of the work. • '
    Appeal 'by the defendant,. The New York Glucose Company, from a judgment of the -Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 20th day of June, 1904, upon the verdict o,f a. jury for $20,000; also from an order entered in said clerk’s office on the 27th day of June, 1904, denying the defendant’s motion for a new trial, and also from an order entered in said clerk’s office on the 23d day of June, 1904, granting the plaintiff an extra allowance.
    
      Frederick Hulse [Ernest F. Eidlitz with him on the brief], for the appellant.
    
      Melville J. France, for the respondent.
   Miller, J.:

The plaintiff has been awarded the sum of $20,000 damages by the verdict of a jury for injuries sustained in the State of New Jersey while in the employ of "the defendant, a foreign corporation.

The plaintiff was employed to oil machinery. On the occasion in question he had placed the foot of a ladder against the rail of a car track extending through the defendant’s factory, and while at the top of the ladder oiling machinery attached to the ceiling a truck loaded with cakes of sugar was pushed against the ladder, knocking it from under the plaintiff, causing him to be caught in the shafting and resulting in injuries of a very serious and permanent character. The plaintiff liad been engaged at this work for about four months, always doing it in the same manner, which he says was according to the instructions given him by the foreman. The bottom of the ladder could have been rested upon the opposite side of and away from the car track, so as to have avoided contact with trucks, and the plaintiff testified that the only reason for not so placing it was that if he had not placed it as instructed he would get discharged. He testified: I could have done it if it had not been for the orders.” The plaintiff had habitually gone upon this ladder without having any one stationed at the bottom to guard against the approach of the trucks, although he knew they were .frequently being pushed over this track. He had apparently relied upon the men seeing and warning him, or upon tlieir stopping and waiting for him to get out of the way, as he testified, referring to the previous occasions: They Would come and warn me that they were coming up, or they would wait until I come off the ladder, and then they would proceed on their way. They would always come and tell me before they come by.” He also says, “ while oiling this cup I couldn’t look down.” Another man employed to do the same work .as the plaintiff testified that when upon'the ladder he always had a man stationed at the bottom; whether the man was stationed there for the purpose of guarding against the approach of a truck or simply to hold the ladder to keep it fróm slipping is not entirely clear, but it is apparent that there .was a man available to guard against the approach of a truck when the oilers were upon this ladder, although not employed for that purpose. The men pushing the truck which caused the plaintiff’s injuries-were foreigners unable to. speak, of understand English. The plaintiff claims , that his attention was' first attracted by hearing somebody call, “ Look • out, look out, the ladder, stop; that upon glancing down and seeing the men coming he called,'“-Stop, stop.”

The plaintiff’s contention is that the inability of the men at the truck to understand English. Was the proximate cause of. the accident ;. that they were, in that respect incompetent fellow-servants, and that, therefore, the defendant had failed to discharge the duty which it owed the plaintiff of employing competent fellow-servants. The learned trial court submitted to the jury, as the sole question upon which the negligence tif the defendant depended, whether it was negligent in.employing men at this particular service who could not understand English. The men at the truck had been instructed to look out fof the ladder and ,to stop whenever it was up. The. room was well lighted, therb-was nothing to prevent the men seeing the ladder had they been attentive, and the trial court charged that they'were negligent in running into this ladder. • There was evi-. dence tending to indicate that two of the men had been at work yvith this, truck only-one or two days, and the third eight or ten days. The evidence bearing upon the question ¡as- to how the men on previous' occasions had learned of the presence of the ladder is ambiguous, opposing counsel insisting upon conclusions of fact diametrically opposed ;■ the evidence adduced by the plaintiff tends to indicate that he had relied solely upon the men discovering the ladder themselves, although at the close, of the' evidence, .upon being recalled, he testified : “ I did not know file- men who were running the truck the-day I was. hurt did not-understand,;English-. 1 had been'able to make the men understand, before that; time that I had seen; ” while defendant’s evidence tends to support the inference that some one did in fact warn the men of the presence of the ladder; the man who had been employed at the truck eight or ten days before the accident testified, “ I never saw a man up oiling the machinery — when some' one tells us we stop;” another witness, who was working in the room where the accident occurred and who says he called out just before the truck struck the ladder, testified, “I did not call out to them to stop the car on other occasions, I only hollered;” the superintendent of the defendant testified, “ I had observed them on different occasions stopping their car at this ladder, sometimes twice, three times a day, sometimes more than that; give them signs so that they know wliat it means.”

The proposition upon which the plaintiff’s right to recover depends is somewhat novel, but having reached the conclusion that there must be a new trial of the action for reasons not involved in the determination of that question, we refrain from deciding it now because of the unsatisfactory condition of the record before us in the respects alluded to.

The plaintiff called a witness to testify to another previous accident occasioned by the fault of these men. After the witness had testified apparently without objection to the following, “ The man come along with a starch truck and he ran into him,” the following occurred : “Defendant’s counsel—I object to that as incompetent. I move to strike it out on the ground that it is an independent, collateral transaction under entirely different circumstances; the facts are not stated, and, therefore, incompetent. The Court-—I will take it as bearing on the question of whether in fact these men were competent fellow workmen. Defendant excepts.” Then followed a narration of the circumstances surrounding the transaction referred to, before the objection, indicating carelessness on the part of the men, and also tending to indicate that they could not understand English. At the close of the testimony of the witness the following occurred: “Defendant’s counsel — I move that this last witness’s evidence be stricken out on-the ground that it has not been proven that they were the same men who were around the truck at the time of the accident, and what occurred on the dock has not been connected. Motion denied; exception.” Evidence of a prior occurrence was not relevant. The plaintiff’s case rested upon the proposition that the men did not in fact undérstand English, and was not based in any sense upon reckless conduct of the men on

prior occasions, of which the master either had or ought to have had knowledge, bnt even in the latter case evidence of specific acts ó'f incompeténcy are not admissible unless coupled with evidence that they were either brought to the attention of the master dr that the circumstances were such that he ought to have; -had knowledge of them. (Park v. N. .Y. C. & H. R. R. R. Co., 155 N. Y. 215 ; Baulec v. New York & Harlem R. R. Co., 59 id. 356.) It is true that the first part of the objectionable eviden'ce came in without objection. • This was harmless, however, as compared with the evidence which followed the .statement by the court of the theory on which he would admit it, and while the motion to strike out the evidence might well have been denied upon the ground that it came too late, it was not denied upon that ground. The defendant’s counsel, contented himself with an exception to' the ruling' of the court that it would receive the evidence as bearing upon the question whether in fact the men were competent fellow-workmen, and allowed the evidence which followed to be recéivéd without further objection ; but where the court has announced that it will receive a certain class of testimony for a' purpose stated, to which the party excepts,'! do not think he is bound thereafter to take further objection fcqthat same class of testimony in order to- protect' his rights. (Schutz v. Union Railway Co., 181 N. Y. 33) As is well stated by Parker, Ch. J., in Stephens v. Ely (162 N. Y. 79, 83): “Appellate courts should not be diligent in seeking a, way to deprive a party of the benefit of an exception pointing out error, where'it appears that the court was fully apprised of the nature-of the objection.” There was no pretense that knowledge of the transaction was brought to the defendant, and the harmful character of this testimony is apparent. The motion-1 of the defendant’s counsel at the close of the testimony of the witnéss to strike out on tlie ground that “ what occurred on the dock lias not been connected,” sufficiently apprised counsel for the plaintiff and the court that in the then condition of the record the retention of that evidence was error. No suggestion was made by the plaintiff that any further evidence could be offered to connect the transaction with the- defendant, no attempt to offer such evidence was made, the theory upon which the court ruled did not require it, and tlie exception to this erroneous ruling is available 'to the defendant in this court.

The court charged the jury, referring to the direction which the plaintiff testified he had received from the foreman, “ There is no evidence that there was any remonstrance against it by the employer, and you have a right to take all that into account in determining whether that is where he was directed to put the foot of his ladder. If he was directed to put the foot of his ladder there and only obeyed the directions of his superior who had a right to direct him, then the fact that he put it there could not be urged against him as negligence,” to which charge the defendant excepted in these words: “I also except to that part of your Honor’s charge, in which you submit to the jury whether the direction of Mr. Erwalt to put his ladder upon the track relieved the plaintiff from con- • tributary negligence.” The respondent argues that the exception did not sufficiently point out the precise point sought to be raised, but that it in fact indicated that the court had simply submitted the question, whether the direction of the foreman excused the plaintiff from any imputation of negligence, as one of fact. This argument is specious. We think the exception was sufficiently definite to cover whatever the court said in submitting the question referred to to the jury, and the charge that the directions received from the defendant’s foreman, if they were in fact received, relieved the plaintiff from any imputation of negligence is clearly error. In directing the plaintiff as to the manner of placing his ladder the foreman was not discharging any duty which the master owed to him, but was directing him solely as to a detail of the work, and in doing this he was a fellow-servant, because this case is controlled by the rule laid down in Crispin v. Babbitt (81 N. Y. 516), that the character of the act and not the grade of the service determines the liability of a master in a case where the immediate act or omission is that of a servant. This is not a case where the servant has a right to rely upon the greater knowledge of a superior in respect to some latent or hidden defect. The danger of resting his ladder against a rail upon which loaded trucks were frequently passing, was as obvious to him as to the foreman. The case of Cullen v. Norton (126 N. Y. 1) is directly in point as being a case where the negligence complained of was that of a foreman in directing the plaintiff where he should work. Other cases in point are Loughlin v. State of New York (105 N. Y. 159) ; Perry v. Rogers (157 id. 251); Madigan v. Oceanic Steam Navigation Co. (178 id. 242). A charge that the direction of the foreman, as to a simple matter like the.placing of a( ladder where the situation was perfectly apparent, excused the plaintiff .from any imputation of negligence as matter of law, clearly violated this rule, settled by these and many other decisions of this State, because in effect it made the master responsible for the negligence of fellow-servants.

These conclusions make examination of the other: questions raised by the appellant unnecessary, and require a reversal. The judgment and order should be reversed and a new trial granted, costs to abide the event. . :

Hirschberg, P, J,, Bartlett, . Woodward and Rich,' JJ., concurred.

•Judgment and order reversed and new trial granted, costs to abide the event.  