
    Palmer v. Conant et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    November, 1890.)
    1. Master and Servant—Injuries to Servant—Negligence of Master.
    When plaintiff, while in the employ of defendants, was injured by the giving way of timbers of a dam on which he was putting flush boards, in an action by him against them therefor, it was for the jury to determine whether the principle upon which the dam was constructed was reasonably safe, and whether reasonable guards to secure safety were provided.
    2. Same—Assumption of Risk.
    Where plaintiff knew nothing of the manner in which the timbers were fastened, it was for the jury to determine whether he was chargeable with having voluntarily taken the risk which led to the accident.
    
      • 3. Damages—Personal Injuries—Loss of-Wages.
    Evidence of the amount of wages plaintiff earned is admissible on the question of damages. .
    4. Appeal—Review—Harmless Error.
    The exclusion of a question to a witness is not ground for reversal where, in his subsequent testimony, he in effect answered the question.
    5. Infancy—Action for Personal Injuries.
    Plaintiff having been injured while in the employ of defendants, they paid to his father the sum of §100, and plaintiff at the same time executed a paper purporting to be a release of all claims against them by reason of the injuries. He was a minor, and received nothing when he signed the paper. Held, that he was not precluded thereby from maintaining an action for the injuries, after becoming of age.
    Appeal from circuit court, Oneida county.
    Action by George W. Palmer against Eugene H. Conant and George P. Conant for injuries sustained by plaintiff on the 19th of December, 1888, while in the employ of the defendants in their operation- of their saw-mill on the south side of Mad river at Camden. James Gerow was defendants’ foreman in their chair shop and factory operated in connection with the mill, and on that day he instructed the plaintiff to go to the dam and “help put on flush boards.” It appears by the plaintiff’s evidence that, while he was en-' gaged in putting on the flush boards, “the north end of the log slid off of the abutment, and throwed him [Chapman] down stream, and the board I -had, with the pressure of the water, carried his end down, and the end I had carried me up. Just as I got on the pivotal part of the dam, the south end of the log came off and struck my leg, and carried me down the apron of the dam 10 or 12 feet. The log lying on the north end of the dam first loosened and went down stream; then it loosened from the south abutment, so they left both abutments. These flush boards were of hardwood, an inch and a ‘half thick, 12 feet long, and averaged from 18 to 24 inches in width. They raised the water. When the log struck me it dragged me off the apron of the dam, and 10 or 12 feet down stream. The water took me down under, and the logs went to the north side of the creek, and the water washed -me on the south side, and I got out the best way I could; I don’t know how. Below the dam I should think the stream was 70 or 80 feet wide in high water. The logs were washed on the north side. When I got out, the bones in my left leg were sticking out through two pairs of pants into the water. It was from about an inch below the knee to the ankle. ” It appeared that the round timbers, without being fastened on the bottom, were allowed to rest on the smooth abutments, with no planking or fastening to hold them in place other than a piece of two-inch plank nailed below them, and, when the pressure of the water came, they gave way. The jury found a verdict for plaintiff for $1,500. From the judgment entered on the verdict, and from an order refusing a new trial, defendants appeal.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      George F. Morss and C. D. Prescott, for appellants. P. H. Fitzgerald, for respondent.
   Hardin, P. J.

1. We think the evidence presented a question of fact for the jury. It was for the jury to determine whether the defendants were guilty of negligence. It was for the jury to determine whether the dam was so constructed as to secure safety, and whether the principle upon which it was constructed was reasonably safe, and whether reasonable guards to secure safety were provided by the defendants. Newall v. Bartlett, 114 N. Y. 404, 21 N. E. Rep. 990; Pantzar v. Mining Co., 99 N. Y. 372, 2 N. E; Rep. 24. It appears by the evidence that the plaintiff was not present when the scant-ling were put down, and knew nothing of the manner in which they were fastened. The jury may properly have found upon the evidence that the plaintiff had no knowledge or appreciation of the defects which led to the accident, and that he was not chargeable with having voluntarily taken the risks incident to the situation in which he was placed. Whatever question there was upon that subject, we are of the opinion that it was one for the jury to determine. Benzing v. Steinway, 101 N. Y. 547, 5 N. E. Rep. 449.

2. Plaintiff was asked, during his examination as a witness: “Question. How much wages did you earn a week from, Conants?” To this question the defendants objected that it was incompetent and immaterial, and, in dealing with the objections, the court observed: “It is received only as an element of damages sustained by the plaintiff.” The defendant took an exception, and witness answered: “Five dollars a week.” It is to be observed that there was no objection to the form of the question. Apparently it called for the wages he had been receiving prior to the injury. We think such evidence was competent. In Beisiegel v. Railroad Co., 40 N. Y. 9, it was held, viz.: “In an action to recover for personal injuries, evidence of the amount the plaintiff is earning at his trade, at the time of and immediately preceding the accident, is admissible upon the question of damages.”

3. In the course of the cross-examination of the physician and surgeon who attended tlie plaintiff, he was asked for his opinion in respect to the condition the plaintiff’s leg would have been in at the day of trial if he had “positively and speedily” obeyed instructions given by the physician. The question was objected to as incompetent and immaterial, and the court sustained the objection, and the defendant took an exception. Upon looking into the evidence following, given by the witness, we find that he, in effect, answered the question. The witness says, viz.: “The bones came together very nicely, and stayed so until he got off the cot-bed, and; if they had been kept where I first set them, there would have been no difficulty in the union, of these pieces of bones.” The witness added, at a later stage of his testimony, that “the plaintiff was a restless patient. The bones were broken in a good many pieces. It was crushed, and that would make any man restless. I told him that rest was imperative, and, in the fore part of the treatment, administered opiates to him to quiet his pain.” Considering the evidence that the witness gavel we are not inclined to say that any prejudicial error was committed preventing an answer to the question as it was first framed upon the subject embraced therein. -Some other rulings were made upon questions of evidence which do not require from us any special consideration, as we are of the opinion that no prejudicial error was committed.

4. When the injuries were received, by the plaintiff, he was under 21 years of age; and on January 7, 1889, the defendants paid to his father the sum of $100, and a paper was executed by the plaintiff on that occasion purporting to be a release of all claims against the defendants by reason, of the injuries to the plaintiff’s leg. When that paper was executed, the plaintiff was still a minor, being only 20 years, 8 months, and 17 days of age. It is to be borne in mind that the father of the plaintiff was entitled to his services until he became of age, and therefore he was entitled to receive of the defendants such sum as he had lost by reason of the injuries sustained by the injury disabling the plaintiff from earning wages. Where a minor is injured, the parents have a right of action, and the child also has a right of action. Cuming v. Railroad Co., 109 N. Y. 99, 16 N. E. Rep. 65; Traver v. Railroad Co., 4 Abb. Dec. 422. It appears by the evidence that the check for the $100 was given to the father of the plaintiff at his house, and that the plaintiff was not there; and that, when the plaintiff signed the paper, he received nothing. We think the payment of the money, under the circumstances, to the father of the plaintiff, does not stand in the way of the plaintiff’s right of recovery. When Green v. Green was tried before me at special term in Onondaga county, I found that the defendant, while an infant, had conveyed a certain piece of real estate to his father for the sum of $400. Having spent and wasted the money, "he had no means or property whatever, and, subsequent to his becoming 21 years of age, lie returned to the premises, and took possession of them, without any restoration to his father of the money that he had received; and, in an action of trespass brought by the father, I held that the plaintiff could not maintain the action. In delivering the opinion in that case, upon an appeal taken to this court, (7 Hun, 494,) Gilbert, J„ says: “Thecourt below, we think, properly gave judgment for the defendant. An infant cannot properly bind himself to his prejudice, but, whenever the act done may be for his benefit, it will not be void, but he has an election when he comes of age to affirm or avoid it. 2 Kent, Comm. 233 et seq., and cases cited. Mere acquiescence, without acts, does not amount to an affirmance.” That case was removed to the court of appeals, and the judgment of the special and general term affirmed. Green v. Green, 69 N. Y. 553. We think we ought to allow the verdict to stand. Judgment and order affirmed, with costs. All concur.  