CARRODA v. FOUNDATION & CONTRACTING CO.
(Supreme Court, Appellate Term.
November 24, 1908.)
Master and Servant (§ 170*)—Injury to Servant—Foreman’s Negligence-Employer’s Liability.
•For other- cases see same topic & § number in- Dec. & Am. -Digs. 1907 to date, & Rep’r Indexes
" An employer is not liable for injury to an employe because óf á_fóreman’s incompetency and negligence, unless the employer failed to use ordinary care in selecting the foreman.
[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 336; Dec. Dig. § 170.*]
Appeal from City Court of New York, Trial Term.
Action by Frank Carroda against the Foundation & Contracting Company. From a judgment' for plaintiff, and, from an order denying a new trial, defendant appeals.
Reversed, and new trial ordered.
Argued before GIRDERSEEEVE, P. J., and MacLEAN and SEA-BURY, JJ.
Frank V. Johnson (Rouis Cohn, of counsel), for appellant.
' Thomas J. O’Neill, "for respondent:
PER CURIAM.
This is an action to recover damages for personal injuries alleged to have been sustained through the negligence of the defendant. We think the judgment must be reversed. The defendant’s negligence is predicated upon the claim that its foreman was incompetent and negligent. There is no evidence to show that the defendant failed to use ordinary care and caution in the selection *1083of its foreman. Even if it be assumed that the defendant was negr ligent in retaining the. foreman after his incompetence had been shown, the plaintiff’s contributory negligence precludes him from recovering in this action. The plaintiff had actual knowledge as to the manner in which the work was being done, under the direction of the foreman, and has entirely failed to establish his own freedom from negligence.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.