Wiesnewsky v. E. E. Smith Contracting Co.

Judgment and order affirmed, with costs. No opinion. Jenks, P. J., Thomas, Stapleton and Rich, JJ., concurred; Burr, J., dissented upon the grounds, first, that the verdict is against the weight of evidence; second, that there is no evidence which would justify the charge of the court that the jury might find that the master “promised to remove the danger which created the risk." The danger which created the risk was the conduct of the boy Carr. This conduct could only be completely cured and the danger removed by the discharge of the boy. Defendant’s foreman never promised to do this. He did nothing more than, in substance, to promise that he would admonish the boy to be more careful; that he would watch him; that he would attend to him. Admonition is not the equivalent of control, nor watchfulness the same as removal.