#### Frank Havlin, an Infant, by Mary Linhart, his Guardian *ad Litem,*Respondent, *v.*Joseph Krulish, Appellant.

(Supreme Court, Appellate Term,

February, 1899.)

Negligence — Improper exclusion of defendant’s evidence as to knowledge, care, etc.

Where an employee brings an action to recover damages for the. loss-of his finger, alleged to have been caused by a hole in the covering: of a cogwheel near a stairway, it is erroneous for the court to exclude evidence, offered by the employer, which tended to show that the place was out of his control," which concerned the question of his knowledge-of the defect, and which bore upon the degree of care to be exercised, in preventing injury.

Havlin v. Krulish, 25 Misc. Rep. 402, reversed.

Appear by defendant from a judgment and order of the General Term of the City Court of Mew York, affirming a judgment entered upon a verdict in favor of plaintiff for $1,000, and on order" denying a motion for a new trial.

Vincent W. Woytisek (Edward Hymes and Michael Schaap, of counsel), for appellant.

Catlin *&*Nekarda (F. W. Catlin, of counsel), for respondent.

MacLean, J.

By his guardian *ad litem,*the plaintiff, a minor, brought this action in the City Court to recover damages from his employer, the defendant, for alleged neglect in allowing an aperture to come into the covering of a cogwheel near the stairway of "access and egress, into which aperture the plaintiff, as he-claimed) acci*382■dentally passed a finger and lost part of it. Eespecting the actual ■occurrence, there was only the testimony of the plaintiff. As to the conditions of the place and the circumstances of the defendant’s responsibility, evidence was given by various persons, among whom the conflict was direct. By the defendant it was claimed that the •owner of the building furnished the motive power by means of this cogwheel, and that therewith, and with the covering of it, he -had nothing to do. Yet the court struck out, upon the mere .motion of the plaintiff, the defendant’s statement that he had no •control of the cogwheel, or of the box around it, and also, similarly -his statement that he was not allowed to do anything with it. It was the contention of the plaintiff that the stairway was unsafe for •the employees, and that the defendant was responsible for the ■condition, and knew or had reason to know it, but after the defendant had testified that he had been in the building for nearly thirty years, as foreman from 1869, and -as lessee for the past eight years, he was not permitted to answer whether he knew of any change in the •cogwheels or their surroundings during the time that they had been there. Mr. Carroll, the representative of, and of the same name as, the owners of the building, testified that he had entire charge of the premises which he visited often, “ once a month regularly, sometimes of tener; ” that he had his agents in charge of the building, -qnd the machinery there was run by Mr. Lorraine, an engineer -employed by his firm, whose duty it was to examine, take care of ;and inspect all the machinery and appliances, but he was not allowed to answer whether a right of way was given to the defendant through this very stairway, or to tell, whether in all his acquaint- . ance of fifteen years with the premises, he knew any accident ■or injury had been occasioned by the cogwheels or their immediate . surroundings. Practically the same question was put to Mr. Lor'raine in two forms, but excluded, as was also the question, “ Who put up the new box? ” probably adduced to show upon whom ■devolved the responsibility of the situation; but this last exclusion was practically cured by this engineer afterwards testifying, “We had a breakdown of the wheels about six weeks after this accident, and that breakdown caused us to put up new boxings.” All of the -evidence called for by these questions, and excluded under exception of the defendant, either tended to prove that the place was out of the control of the defendant, or bore upon the question of knowledge and the degree of care to be exercised in preventing injury. *383Furthermore, the defendant was allowed to be asked, “ You know that the law requires the person in charge of a factory to keep the cogwheels covered, don’t you? ” to which he answered, “ Yes,” thus erroneously presenting as a fact what is not contained in the law. For these errors in the exclusion of evidence material to the case of the defendant, and for the admission of an erroneous interpretation of the act likely to produce prejudicial opinion as to the duty of the defendant, the judgment of the General Term should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Freedman, P. J., and Leventritt, J., concur.

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