missed in the Supreme Court. The Appellate Division, Third Department, held unanimously that the dismissal of the complaint was an error and granted a new trial.* At the second trial plaintiff secured a judgment which was affirmed by the Appellate Division, Third Department. On appeal the judgment was unanimously reversed by the Court of Appeals on the ground that certain evidence had been improperly admitted at the trial. The nature of this evidence appears in the following extract from the decision. Without otherwise referring to the evidence, we think that the judgment appealed from might stand, were it not for a serious error committed by the trial court in the reception in evidence of a declaration of the deceased, made to a fellowworkman after his fall and which may have influenced the decision by the jurors of the question of fact. Whatever we may consider to have been the sufficiency of the other evidence, we could, and should, not assume that a declaration, made under such circumstances, may not have had its effect upon the jurors' minds. A witness, also, employed as a "rigger," and who was standing a few feet away from where the deceased had fallen, went over to him and, as he lay there, "asked him what had happened." Over the objection of the defendant, he was, then, allowed to state what the deceased said and an exception was taken to the ruling. The witness testified: "when I asked him what had happened, he said my feet is broke; the ladder bent over." The admission in evidence of the declarations of an injured person constitutes an exception to the general rule that excludes hearsay evidence and is only justified when the declarations are spontaneous utterances, or exclamations. There is no confusion in the decisions of this court upon this question. The distinction to be made is in the character of the declaration; whether it be so spontaneous, or natural, an utterance as to exclude the idea of fabrication; or whether it be in the nature of a narrative of what had occurred. In the present case, the declaration of the deceased was not spontaneous; it was called forth by the inquiry as to "what had happened' and was, distinctly, narrative. As it was observed in the dissenting opinion below, "it was, in effect, a statement that the falling was not accidental, nor due to the negligence of the plaintiff's intestate, but was due to an occurrence upon which might be predicated negligence upon the part of the defendant." For the error pointed out, the judgment must be reversed and a new trial had; costs to abide the event. Greener v. General Electric Co., 209 N. Y. 135. Liability of Owner to Employee of Contractor.- Defendant operated a brewery in a leased building. The building, which was old, with brick walls and wooden floor beams, was three stories in height with a cellar beneath. In 1907 defendant entered into a contract with one Johnson, a contractor, for the laying of a new floor on the first story because of the decayed condition of its floor beams. In January, 1908, during the progress of the work, the building collapsed, due to the fact that the beams of the second floor were rotten at the end, thereby killing plaintiff's intestate, a carpenter, in the employ of a subcontractor of Johnson. Plaintiff, in an action for damages in the Supreme Court for the death of her husband, received a verdict against defendant and also against Johnson, but the verdict against the latter was set aside. On appeal the Appellate Division, First Department, affirmed the judgment against defendant. The Court of Appeals, however, reversed the verdict and ordered a new trial on the ground of an error in the judge's charge in the Supreme Court. The ground of dissent is stated in the following excerpt from the opinion. *See June, 1912, Bulletin, p. 202. The verdict of the jury, resting on sufficient evidence, was against the defendant, and the judgment appealed from would have to be affirmed but for an error in the judge's charge. The court charged the jury "That to render the Breweries Company liable for the injuries to the deceased caused by the defective or dangerous condition of the building, it was not necessary for the plaintiff to show actual negligence on the part of the owner. It is enough that the plaintiff show that the owner permitted another to place the premises in such a condition as to cause the injury and death of the deceased." The charge was plainly erroneous. only on the ground of its negligence. The defendant can be held in this action The question of the defendant's negligence was a close one, and it was extremely prejudicial for the court to say to the jury that the defendant, although not negligent itself, was liable for the acts of Johnson, an independent contractor. The court seems to have regarded the work undertaken as intrinsically dangerous, and the plaintiff's intestate as a person not connected with the performance of the work who was injured through Johnson's negligence. It is sufficient to say that under the proof the repairs to the building could have been made with entire safety. The case in which Judge Andrews wrote, and the other cases before cited, establish the rule that, under such conditions, the owner assumes no liability for negligence of the contractor, even when a stranger to the contract is injured. I regard the error in the charge as of sufficient gravity to require a reversal of the judgment. Parsan v. N. Y. Breweries Co., 208 N. Y. 337. Safe Place to Work Inspection of Appliances· Proximate Cause of Injury. Plaintiff's intestate, in employ of defendant, was fatally injured in December, 1907. At the time of the accident intestate was at the top of a derrick mast forty-seven feet high. While a second "stiff leg" sixty-two feet long was being placed in position for the purpose of supporting the mast the "stiff leg" turned around, and the boom also, and struck the first "stiff leg," which was already in position, causing it and the mast to fall. The intestate was thrown to the ground and struck by one of the three or four pieces into which the "stiff leg," already in position, was broken by reason of its having been constructed of decayed timber. In a trial in the Supreme Court plaintiff recovered a verdict which was reversed by the Appellate Division, one justice dissenting. On a second trial in the Supreme Court defendant secured a verdict, which was unanimously affirmed by the Appellate Division, Second Department. The Court of Appeals, Justice Chase dissenting, reversed the judgment for defendant and ordered a new trial. Counsel for defendant argued that the "proximate cause" of the accident was the removal by intestate of the key which held the first "stiff leg" in place, a cause brought about solely by intestate. The decision of the court was in part as follows: As the plaintiff was entitled to the benefit of every fact that the jury could have found from the evidence, and to every legitimate inference therefrom, we are of the opinion that a question was fairly presented for the determination of a jury as to whether or not the defendant master had exercised ordinary care and diligence in providing the deceased with a reasonably safe place to work and in the proper inspection of the appliances and materials which defendant furnished plaintiff's intestate in the course of his employment, also as to whether or not the proximate cause of the injury was the breaking of the mast and "stiff leg" which was being put into place. For this reason the judgment should be reversed and a new trial ordered, costs to abide the event. McDonnell v. Metropolitan Bridge & Construction Co., 209 N. Y. 106. Election of Remedies Under Common or Statute Law.-The Appellate Division, Third Department, in affirming a judgment for $5,000 rendered in the Supreme Court in Tompkins county for injuries inflicted on plaintiff by the falling of a boom, ruled that plaintiff had the right to prove negligence of defendant, his employer, under the Employers' Liability Act and also under the common law, saying on this point: Under the Labor Law the failure to furnish safe machinery is negligence; under the common law the failure to hire a competent engineer is negligence. If the plaintiff proves them both as contributing reasons for the accident, assuming of course his freedom from contributory negligence, that gives him a cause of action -one cause of action. (Payne v. N. Y., S. & W. R. R. Co., 201 N. Y. 436.) If he proves either that would give him a cause of action, but he was entitled to have both grounds submitted to the jury, for they might believe the one and reject the other. They might reject the contention of defective appliances, think it not proven, and adopt the assertion of negligence in hiring an incompetent engineer, think it well established by the evidence. Any grounds of negligence which were presented to the court by the pleadings and the proof, whether under the common law or the statute law, should have been submitted to the jury. Marion v. Coon Construction Co., 157 App. Div. 95. Right of Nonresident to Sue a Foreign Corporation in New York State Courts.- Plaintiff's intestate, a brakeman in defendant's service, was thrown from a moving train while in the discharge of his duty. The deceased was a resident of New Jersey, the defendant was a New Jersey corporation and the accident occurred in New Jersey. A verdict was rendered by a jury in the Supreme Court for Orange county for $12,000, which was set aside by the presiding judge and the complaint dismissed on the ground that the court was without jurisdiction to entertain the action. Plaintiff appealed and the Appellate Division, Second Department, affirmed the judgment of the Supreme Court in dismissing the complaint.* Actions in the courts of this State by nonresidents against foreign corporations are regulated by section 1780 of the Code of Civil Procedure. The Appellate Division held that the seetion in question did not extend to a nonresident the right to recover damages for an accident occurring in a foreign State. Payne v. N. Y., S. & W. R. R. Co., 157 App. Div. 302. It may be noted, however, that by chapter 60 of the Laws of 1913, section 1780 has been amended so as to extend jurisdiction in such cases "where a foreign corporation is doing business within this State." *For previous litigation of this question, see June, 1911, Bulletin, p. 281. RECENT LABOR REPORTS. United States. Report on condition of women and child wage-earners in the United States. Senate Document No. 645, 61st Congress, 2d session. Prepared under the direction of the Commissioner of Labor. Vols. XVIII-XIX. Washington, 1913. Contents: Vol. XVIII. Employment of women and children in selected industries, pp. 531. The report covers twenty-three industries not dealt with in the previous reports of the series, including cigars, cigarettes and tobacco, hosiery and knit goods, and woolen and worsted goods. The contents include industries and employees, age of female workers by industries, earnings by industries, relation of age to earnings, and race, age and conjugal condition. Vol. XIX. Labor laws and factory conditions, pp. 1125. The 19th and last volume of the series presents the results of an investigation into the administration and operation of state labor laws and covered 563 establishments, and 58 more or less clearly separate industries in 19 of the most important industrial states. Subjects dealt with in separate chapters for each state are: Legal age, prohibited employments and working papers; hours of labor, night work, posting of time schedules, meal period; posting of labor laws; safeguards against fire; safeguarding of machinery; safeguarding of elevators; reporting of accidents; provisions for the comfort of employees; ventilation and sanitation. Appendix A contains the text of laws relating to the employment of women and children, and Appendix B the laws relating to the regulations and inspection of factories and workshops in force January 1, 1912, in all states. Publication of the United States Bureau of Labor Statistics. Washington, April-August, 1913. Wholesale price series. No. 1. Wholesale prices 1890 to 1912. Retail prices and cost of living series. No. 6. Retail prices 1890 to February, 1913. Wages and hours of labor series. No. 3. Union scale of wages and hours of labor 1907-1912. Women in industry series. No. 1. Hours, earnings and duration of employment of wage-earning women in selected industries in the District of Columbia No. 2. Working hours of women in the pea canneries of Wisconsin. Miscellaneous series. No. 4. Employers' welfare work. COLORADO. Thirteenth biennial report of the Bureau of Labor Statistics of the State of Colorado. Denver, 1913. Pp. 292. Contents: Review of work of Bureau and recommendations (p. 7–14); factory inspection and free employment offices (p. 15-86); labor organizations of Colorado (p. 87-134); industrial disputes (p. 135-147); population of Colorado according to U. S. census of 1910 (p. 148-167); agricultural statistics (p. 168-195); agriculture (p. 168-195); manufactures (p. 196245); railroads (p. 246-262); mining and miscellaneous (p. 263-292). CONNECTICUT. Report of the commission to investigate the conditions of wage-earning women and minors, appointed by the governor, 1911. Hartford, 1913. Pp. 297. Data embodied in the report include number, age, nationality, earnings, hours and health conditions of women and minors in the cotton, silk, corset, metal and rubber industries. Among the recommendations for legislation of the Commission are: the shortening of hours of labor, the reporting of industrial diseases and accidents, the prohibition of woman and child labor in certain occupations, regulations for comfort and health, and the appointment of a minimum wage commission. GEORGIA. First annual report of the commissioner of Commerce and Labor for the fiscal year ending December 31, 1912. Atlanta, 1913. Pp. 46. The department of commerce and labor of Georgia was organized on January 25, 1912, and the present is the first report issued by the department. Besides general recommendations by the commissioner, the report contains statistics of manufacturing industries and a directory of industrial plants in Georgia. ILLINOIS. Fourteenth annual report of the Bureau of Labor Statistics of the Illinois Free Employment Offices for the year ending September 30, 1912. Springfield, 1913. Pp. 132. There were 73,356 applications for employment in the year 1912 at the six free employment bureaus of Illinois, and 69,883 persons or 95.27 per cent of the applicants secured positions. Applications for help from employers numbered 81,371, which could be supplied to the extent of 85.88 per cent. MASSACHUSETTS. Twenty-seventh annual report of the State Board of Conciliation and Arbitration for the year ending December 31, 1912. Boston, 1913. Pp. 144. The report describes the work of the board and contains the text of decisions rendered in the matter of joint applications for arbitration by employers and employees. The immigrant population of Massachusetts. Part I of the annual report on the statistics of labor for 1912. Boston, 1913. Pp. 90. The report consists of three parts, as follows: I. Immigrant aliens destined for and emigrant aliens departed from Massachusetts, 1912. II. Immigrants in cities and industries. III. Foreign-born population of Massachusetts, 1910. The information contained in the report was compiled from the annual reports of the Commissioner-General of Immigration, the report of the United States Immigration Commission created in 1907, and the United States Census, 1910. OHIO. Annual report of the State Board of Arbitration for the years 1911 and 1912. Columbus, 1913. Pp. 135. |