
    Albert Henry Date, Respondent, v. The New York Glucose Company, Appellant.
    Second Department,
    July 24, 1906.
    Negligence—when employment of servants who do not understand English is not negligent.
    An employee who is injured by the act of his fellow-servants in pushing a tram car used in the factory against the foot of a ladder on which he was standing cannot recover on the theory that the master was negligent in employing servants who could not understand English, and who did not obey the plaintiff’s call for them to stop. The master was not bound to anticipate an accident from such lack of knowledge of the English language, and, moreover, the fellow-servants might have been equally negligent had they known the language.
    Rich, J., dissented.
    Appeal by tlie defendant, Tbe Hew York Glucose Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in tbe office of tbe clerk of tbe county of Queens on tbe 21st day of October, 1905, upon tbe verdict of a jury for $22,000, and also from an order entered in said clerk’s office on the 17tli day of Hovember, 1905, denying the defendant’s motion for a new trial made upon tbe minutes.
    
      Frederick Hulse, for the appellant.
    
      Melville J. France [George V. S. Williams with him on tbe brief], for the respondent.
   Gaynor, J.:

This case was here on a former appeal (104 App. Div. 207). The plaintiff worked for the defendant in its glucose factory as an oiler of machinery. He set up a ladder in a room of the factory to oil some shafting which was about 15 feet up from the floor, and be was at tbe work at tbe top of tbe ladder. Tbe foot of it was on a two-rail tramway running through the room and over which a platform car was pushed every 5 or 10 minutes to carry sugar cakes. Three men who were pushing a car along from behind in the usual way pushed it against the plaintiff’s ladder and knocked it down and hurt him. The plaintiff saw them coming about 25 feet away from the ladder and called out to them to stop, but they paid no heed. Another employee saw them when they were from 3 to 6 feet away from the ladder and called out in the same way to no effect. The car entered the room through a door about 100 feet away.

I do not see how the judgment can be sustained. The plaintiff was injured by the negligence of his fellow-servants. The only negligence claimed against the defendant is that the three men were not competent or fit servants for the work for the reason that they were foreigners unable to understand any English. Even so, it was not negligence or breach of duty to the plaintiff for the defendant to employ them to do such simple work as pushing a car. They could see and hear, and 1 do not see how it could occur to any one that the fact that they could not understand English would make it dangerous to others for them to push the car along the track through the rooms. If they had understood all languages they could have neglected, just as they did, to look ahead along each side of their loaded car, assuming they could not see the plaintiff or his ladder by looking over the load, which it does not seem could have been the case. The fact that they did not know the meaning of the words “ stop,” “ look out ” and “ ladder ” which were called to them and therefore did not heed them and stop, may or may not have caused the accident. But the defendant could not have anticipated such an accident from such a cause, and that is the test of its negligence or breach of duty in putting them at such work.

The judgment and order should be reversed.

Hirsohberg, P. J., Hooker and Miller, JJ., concurred; Bich, J., dissented.

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