
    Stephen McGarragher, Resp’t, v. William Gaskell et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1886.)
    
    1. Jury—When a question may be properly submitted to.
    A question is properly submitted to the jury when the evidence upon it is such that reasonable men may well differ as to the inference to be drawn from it.
    3. Same—Refusal to submit case to—When warranted.
    To warrant a refusal to submit a case to a jury it must appear, after conceding the testimony for the plaintiff to be true, and giving him the benefit of all legitimate inferences therefrom, that a verdict in his favor cannot be upheld.
    3. Negligence—Partner not liable for injury arising through
    NEGLIGENCE OF A COPARTNER.
    
      Held, that where an injury to a servant was occasioned by the negligent act of one of his employers, the copartners of the wrong-doer were not liable.
    Appeal from a judgment entered upon a verdict rendered by a jury at the Kings county circuit, and from an order denying a motion for a new trial upon the minutes of the trial judge.
    
      Estes & Barnard, for app’lts; James D. Bell, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered upon a verdict rendered in favor of the plaintiff for $1,000, and also from an order dated November 18, 1885, denying defendants’ motion for a new trial upon the minutes, in an action for negligence. On October 10, 1884, plaintiff, a journeyman blacksmith, was in the employ of the defendants, then boss blacksmiths in New York city. He was engaged in welding a foot upon a stanchion, both being of iron, when the defendant, Greenlie, standing to plaintiff’s left and rear, suddenly, and without warning, threw what is called “cherry welding compound,” a mixture of borax and iron-filings, upon the surface of the iron, whereby a sputtering-flux was formed, and one of the liquid particles flew into plaintiff’s eye, so injuring it that he has lost the • sight of it.

The defendant strenously contends that the proof shows that the injury received by the plaintiff was one incident to the employment, and of which he assumed the risk. It is true he assumed the ordinary perils which belonged to the work itself, or naturally grew out of it, but there was evidence tending to show, and the jury have so found, that suddenly throwing the compound described on hot iron, without warning, was unusual, and well calculated to produce such an injury. Had a proper warning been given, it is possible the plaintiff might have taken some precaution to avoid the injury. But defendant claims that the proof shows that sparks are liable at all times to fly when welding iron, and that it is not established that the using of the compound was the cause of the accident, and even if it was, the defendant had a right to use it, as its use was so common and natural that no warning was required to be given. The difficulty with this contention is, that the jury have found against it upon disputed facts, and the verdict is not so manifestly against the weight of evidence as to justify setting it aside. We think there is evidence from which the jury were authorized to find that plaintiff was injured by reason of the compound having been used in the manner described.

This question was properly submitted to the jury,_ as the evidence was such that reasonable men might well differ as to the inference to be drawn from it. Thurber v. Harlem R. R. Co., 60 N. Y., 331; Stackcus v. N. Y. C. and H. R. R. R. Co., 79 id., 464; Wait v. Agricultural Ins. Co., 13 Hun, 371.

To warrant a refusal to submit a case to a jury, it must appear, after conceding that the testimony for plaintiff is true, and after giving him the benefit of all legitimate inferences therefrom, that a verdict in his favor cannot be upheld.

The acts of defendant, Greenlie, were shown to be unusual and unexpected, and were such as justified an inference by the jury, if they believed the evidence introduced by the plaintiff, that the defendant did not act with due care.

The charge was full, fair and unexceptionable, and the damages cannot be said to be excessive.

The exception to the ruling that the copartners of Greenlie could not be held hable was not well taken. Shearman & Red. on Negligence, § 39; Parsons on Partnership, (3d ed.)„ chap. 11, 163; Strober v. Elting, 97 N. Y., 102.

We have examined the several exceptions taken upon the trial and to the charge, but find none exhibiting such error as to warrant the'granting of a new trial.

Judgment and order appealed from affirmed, with costs,

Present: Barnard, P. J.; Dykman and Pratt, JJ.  