#### Bessie Gibson, as Administratrix, etc., of Ira Gibson, Deceased, Respondent, *v.*The Casein Manufacturing Company, Appellant.

Third Departmént,

May 7, 1913.

Master and servant — negligence — evidence — testimony that intestate was an'ordinarily cautious man.

In an action to recover for the death of plaintiff’s intestate, resulting from injuries sustained while working around machinery in defendant’s factory, there being no eye-witness to the accident, it is reversible error to permit the plaintiff to prove over the defendant’s objection that the intestate was an ordinarily cautious man when employed around machinery.

Smith, P. J., dissented, in memorandum.

*47Appeal by the defendant, The Casein Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chenango on the 9th day of October, 1911, upon the verdict of a jury for $3,250, and also from an order entered in said clerk’s office on the 25th day of October, 1911, denying the defendant’s motion for a new trial made upon the minutes.

*Page & Hays [Frank M. Hays*of counsel], for the appellant.

*Julien Scott,*for the respondent.

Kellogg, J.:

The charge properly submitted the case to the jury, and we cannot say that the verdict is not sustained by the evidence. It is not clear that the deceased was fixing the setscrew while the machinery was in motion. If, however, we assume otherwise, we cannot say as a matter of law that he was guilty of contributory negligence. The appellant introduced such evidence as seemed to it proper. It did not show whether the rules or custom of the mill required that the engine be shut down while the setscrew was being adjusted. Apparently it was not deemed unusual that it was not shut down in this case. Naturally it would be better for the employee to shut off the power if he alone is considered; but that would delay the defendant’s work. Permitting the engine to run was for the defendant’s interest only, and it is not unreasonable to assume that the usual custom of the mill was followed. There was no eye-witness to the transaction, and I think within *Irish*v. *Union Bag & Paper Co.*(103 App. Div. 45; 183 N. Y. 508) the jury may well have determined that the intestate was free from contributory negligence.

The difficulty with the case, as I see it, is that the plaintiff was permitted to prove, over the defendant’s objection, that the intestate was an ordinarily cautious man when employed around the various kinds of machinery. The authorities seem to compel the conclusion that such evidence is inadmissible. *Zucker*v. *Whitridge*(205 N. Y. 50) holds that if there is an eyewitness, then it is inadmissible to prove that the deceased was a prudent and careful person, without passing upon the ques*48tion whether the rule applies if there is no surviving witness, but *Parsons*v. *Syracuse, B. & N. Y. R. R. Co.*(205 N. Y. 226), a case where there was no eye-witness to the intestate’s acts, indicates that the rule applies whether there is or is not a surviving witness of the transaction.

Perhaps these cases do not necessarily decide the question, but it seems to me that we are foreclosed by them from further consideration of it. I, therefore, feel constrained to favor a reversal.

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred; Woodward, J., in opinion, except Smith, P. J., who dissented in memorandum; Lyon, J., not sitting.

Woodward, J. (concurring):

I concur in the conclusion reached by Mr. Justice Kellogg, that the judgment should be reversed because of the error in permitting the witness Crumb to testify to his opinion as to the decedent being ordinarily cautious when he was employed around the various machines not particularly in the plant where the accident occurred but in various places. The testimony was merely the opinion of this witness, not shown to have been based upon any general observation of men, but upon his alleged observations of the decedent while at work in various places, and he says that he considered him “ordinarily cautious.” What this means depends entirely upon what the witness conceives to be ordinary caution, a question which belongs exclusively to the jury, to be based upon the facts brought out in the testimony. There is no place for opinion evidence upon a point of this character; it is necessary to a proper trial by jury, involving the question of reasonable care, that the facts be presented, .and that the jury determine the question of reasonable care. It is the judgment of twelve men, sworn to the discharge of their duty, upon. the evidence, which is the essential element of a jury trial where the issue involves the question of reasonable, care, and it was clearly error to permit the witness to testify over the objection and exception of the defendant to his opinion as to the care of the plaintiff’s" intestate.

*49But, suppose the plaintiff’s intestate to have been ordinarily cautious around machinery as a matter of fact; suppose that it had been shown that in many instances he had evidenced more than ordinary care in handling machinery, would that warrant a jury in determining in a given case that he was in the exercise of ordinary care ? Section 16 of article 1 of the State Constitution provides that “ Such parts of the common law, and of the acts of the Legislature of the Colony of New York, as together did form the law of the said Colony, on the nineteenth day of April, one thousand seven hundred and seventy-five, * * * which have not since expired or been repealed or altered; and such acts of the Legislature of this State as are now in force, shall be and continue the law of this State, subject to such alterations as the Legislature shall make concerning the same,” and this, I take it, precludes the right of the courts to alter the common law. This action is brought under the common law, and the common law unquestionably makes it a condition of liability on the part of the master for negligence that the servant shall establish, not alone that the master has neglected some duty which he owed to the servant, but that the servant has not been guilty of any negligence contributing to the accident, for where the negligence of the servant contributes to the accident — where the accident would not have happened except for the negligence of the servant in conjunction with that of the master — he is the author of his own misfortune *(Continental Improvement Co.*v. *Stead,*95 U. S. 161, 165), and the requirement of the Constitution (Art. 1, § 6) that no person shall-“be deprived of life, liberty or property without due process of law,” forbids that an accident due to the contributing negligence of another shall be charged to the master. In other words, due process of law forbids that any man should be charged with responsibility for the act of another, unless the act is that of an agent or of one for whose conduct the master is answerable by reason of the duty which he owes to the servant or another. It may be that it is competent for the Legislature to so amend the common law as to make the master liable where he has been negligent, even though the servant contributes to the accident by his own *50negligence, but it is sufficient for the present to know that the Legislature has not yet attempted this encroachment upon the common-law rights of the master. Even the Employers’ Liability Act (Laws of 1902, chap. 600, § 1; re-enacted by Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], § 200; since amd. by Laws of 1910, chap. 352) makes it a condition of recovery that the employee shall himself be “in the exercise of due care and diligence *at the time,”*and while the plaintiff attempts to assert a cause of action under this statute the pleadings show that it is merely a common-law action, the basis of liability being not a “defect in the condition of the ways, works or machinery connected with or used in the business of the employer,” but a failure on the part of the employer to provide proper guards around the machinery, under the provisions of section 81 of the Labor Law (Gen. Laws, chap. 32 [Laws of 1897, chap. 415], as amd. by Laws of 1906, chap. 366; re-enacted by Consol. Laws, chap. 31 [Laws of 1909, chap.' 36], as amd. by Laws of 1909, chap. 299, and Laws of 1910, chap. 106), in no manner modifying the common law in so far as the question here involved is concerned. The requirement of the Employers’ Liability Act that the employee shall be “in the exercise of due care and diligence at the time,” is merely a codification of the common law in this particular, and is a condition precedent to any right of recovery. The plaintiff recognized this by pleading that the decedent was “ without fault or negligence on his part,” that the accident resulted “solely by reason of the negligence of the defendant and its disregard of its duty,” etc. If it is necessary to establish the fact that the employee was “in the exercise of due care and diligence at the time,” then this requirement cannot be met by proof that the plaintiff’s intestate was believed to be “ordinarily cautious” by one of the witnesses called by the plaintiff, for it would have no possible tendency to establish this material fact.

In discussing a grade crossing accident the United States Supreme Court made the following pertinent observations: “ On the other hand, those who are crossing a railroad track are bound to exercise ordinary care and diligence to ascertain whether a train is approaching. They have, indeed, the *51greatest incentives to caution, for their lives are in imminent danger if collision happen; and hence it will not be presumed, without evidence, that they do not exercise proper care in a particular case. But notwithstanding the hazard, the infirmity of the human mind in ordinary men is such that they often do manifest a degree of negligence and temerity entirely inconsistent with the care and prudence which is required of them — such, namely, as an ordinarily prudent man would exercise under the circumstances. When such is the case, they cannot obtain reparation for their injuries, even though the railroad company be in fault. They are the authors of their own misfortune.” *(Continental Improvement Co.*v. *Stead,*95 U. S. 161, 165.)

In the case at bar there appears to have been no eye-witness, and the rule has long been recognized that less evidence was necessary to establish the absence of contributory negligence than would be required if the party had been injured instead of killed, but it has never yet been held that there was a case for the jury where there was absolutely no evidence of care on the part of the person killed, and in the case now before us there is no evidence of the necessary fact unless it is afforded by this opinion of a friendly witness that at times before the accident the deceased had exercised ordinary caution. How this could possibly be made to furnish evidence of what occurred at the time of the accident it is beyond me to discover, and I am in favor of a reversal of the judgment because it is error to permit of such testimony, and this court has no power or authority to change the rules of law; that is a responsibility which the legislative department of the government must assume.

Smith, P. J. (dissenting):

I do not agree that this case should be reversed for the admission of evidence as to the fact that the intestate, was ordinarily cautious in working around the mill.

The exhaustive discussion of Judge Vann in *Zucker*v. *Whitridge*(205 N. Y. 50) leaves little to be stated upon the condition of the law in this State. The competency of this class of evidence has not here been determined. In the *Parsons*case, referred to in the prevailing opinion, the court determined *52that specific instances of care could not he shown. In the *Zucker*case the court came to the conclusion that a habit of carefulness was not admissible where there were eye-witnesses to the accident. This conclusion was reached by reason of the inconvenience of presenting so many issues to a jury of which the adversary could have no notice. The relevancy of the evidence seems to be assumed. There are substantial authorities cited in the *Zucker*case holding that where there is no eye-witness to the accident which caused the death of plaintiff’s intestate such evidence is competent. It should at least, in my judgment, be held competent where the law places the burden upon the plaintiff of proving the want of contributory negligence in the deceased as a part of his case. That requirement is practically based upon a presumption of negligence which must be overcome before a plaintiff can recover. As against a party representing a deceased intestate, if that presumption be held and there are no eye-witnesses to the accident, it seems to me that common humanity should leave the court to permit the relevant testimony as to the general habit of the deceased in exercising care under similar circumstances. I, therefore, dissent.

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