Reports of Cases Heard And Determined in the Appellate Division ..., volume 102
Reports of Cases Heard And Determined in the Appellate Division ..., volume 102
New York (State). Supreme Court. Appellate Division, Marcus Tullius Hun, Jerome B. Fisher, Austin B. Griffin
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'And of course there can be no doubt that he had full opportunity to observe and know their condition and appi-eciate the necessity for replacing tliem if it existed. We, tlierefoi^, have it that if the gangway was in a defective condition at the time of tlie accident it was because intes- tate had failed to discharge the powers which had been delegated to him by his employer, and if the defendant was negligent in allow- ing the cleats to remain after tiiey were worn and defcjctive, tiie immedi...ate cause of this negligence was the failure of the intestate himself to perform his duty. It needs no citation of authorities to sustain the proposition that the plaintiff may not recover from defendant for a negligent condition which was permitted and not remedied by her intestate in violation of his duty. The trial judge charged : " That if the jury find that the accident was caused by any defect in the incline or runway which arose from, or had not been discovered or remedied owing to, the negligence of a person in the service of the defendant and entrusted by the defendant with the duty of seeing that the ways and works of the defendant were in proper condition, the person so entrusted by the Digitized by Google BAKER V.
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