district. If the application for the mandamus itself was made in the proper district, I can see no objection to a judge or special term in any part of the state making an order to show cause for the purposes in question, provided it is made returnable at a special term held in the district embracing the county wherein the issue of fact joined upon the alternative writ or mandamus would be triable. While, as before stated, the order to show cause herein is not in very good form, and contains some of the phraseology and directions of a mandamus, yet it is not a mandamus, but an order to show cause why one should not be granted; and the practice followed by the relator in this case, I think, is substantially correct. The other objection raised is as to the judgment that the relator seeks to have the defendant audit and allow. The judgment purports to be a judgment of the Fulton county court of sessions, and the claim is that the court of sessions is a criminal court, and has no jurisdiction to render a civil judgment. I think this objection is without force. Chapter 2, § 39, Code Crim. Proc., defines the jurisdiction of courts of sessions. Subdivision 3 of such section provides that they shall have jurisdiction "to hear and determine appeals from orders of justices of the peace under the provisions of law respecting the support of bastards." Section 861 of the Code of Criminal Procedure provides that a person who feels himself aggrieved by an order of the magistrates in bastardy proceedings may appeal to the court of sessions of the county. Section 873 of the same Code directs that the costs must be awarded in favor of the party in whose favor the appeal is determined. That section also directs the manner in which such costs are to be paid when awarded against the overseer of the poor of a town not liable for the support of its own poor. Section 874 of the same Code provides that in other cases the payment of the costs may be enforced by the court as in civil actions. It will thus be seen that courts of sessions have power to award costs, and to enforce their payment, as in civil actions. Section 3, c. 155, Laws 1886, provides that the towns in the county of Fulton shall be liable for the support of their own poor, so that we have here a case where the payment of costs is to be enforced by the court as in a civil action. 2 Rev. St. p. 474, §§ 102, 103,1 (Birdseye's St. p. 26, §§ 82, 83,) provides for the payment by boards of supervisors of judgments for any debts, damages, or costs obtained against any town and supervisor or the overseers of the poor thereof. It seems to me, therefore, that a court of sessions having jurisdiction to award costs and to enforce their payment as in a civil action, and a judgment for costs having been rendered by the court against the town of Johnstown, and it being made the duty of the board of supervisors to provide for the payment of judgments against the town, and the defendant having failed and neglected to make provision for the payment of the judgment in this case, the relator is entitled to the relief asked for. The order of the special term denying the appli

14 Rev. St. (8th Ed.) p. 2685.

cation for a mandamus should be reversed, with costs of the motion at special term, together with the costs of this appeal, with printing and other disbursements. All concur.

(70 Hun, 449.)

SODERMAN v. TROY STEEL & IRON CO.

(Supreme Court, General Term, Third Department. July 8, 1893.)

1. APPEAL-REVIEW-EVIDENCE.

In an action for injuries from a defective dump car on which plaintiff was employed in transporting material, the evidence being conflicting as to whether the car was defective, or whether it was left in an unsafe condition by fellow servants, a finding for plaintiff will not be disturbed. 2. PERSONAL INJURIES-DAMAGES.

One thousand dollars for injuries to a laborer 56 years old, in good health, is not excessive damages for a permanent injury rendering him practically unable to perform manual labor.

Appeal from circuit court, Rensselaer county.

Action by Peter Soderman against the Troy Steel & Iron Company for personal injuries. Judgment in favor of plaintiff entered on a verdict for $1,000. Defendant appeals. Affirmed.

The action was prosecuted for alleged negligence of the defendant in furnishing an alleged defective car, upon which the plaintiff was employed to work, in transporting slag from defendant's steel works to a dump on defendant's ground, where such slag was deposited. The plaintiff was a common laborer, and had been in the employ of the defendant as such for about 10 years, and appears to have been subject to the orders and directions of one Babcock, who was boss laborer on defendant's works. On the 28th of August, 1888, the plaintiff, with other employes of the defendant, loaded several cars with this refuse material, and ran one train without accident to the dump, discharged the load, and backed up to the pit at defendant's furnace, reloaded their train, and started again for the dump. The train was run at about the rate of three or four miles an hour. Before reaching the dump, the body of the car on which plaintiff was seated, without any interference by any of the employes, became unhooked from the truck, and dumped its contents, carrying the plaintiff with it, who fell under the loading of the car, and was injured. The car on which the plaintiff was employed was so constructed that the body rested upon the truck, and was attached to a center shaft, running lengthwise of the box, so that the shaft could be moved by a crank at one end. This shaft was attached to two rollers or wheels, one at each end, about six inches in diameter, which supported the box, and aided in moving it. The rollers rested on cross bars running across the car on the truck. On this shaft, at its central part, under the car, is a pinion, or small notched wheel. This pinion is so placed as to engage with the rack, which is a flat strip of iron with teeth projecting above it, running transversely across the frame which supports the car box. When this shaft, which is moved by a crank turned by hand, is set in motion, the teeth of the pinion engage with the toothed surface of the rack, and the box, by the aid of the rollers, is moved laterally until its center of gravity gets beyond the support, when the box dumps. There are also two chains connected on the car box with the truck, which prevent the box from passing beyond the point necessary to dump its load. The mode of fastening the car box to the truck is by means of two hooks, which are attached to the cross bar, which is immovably fixed to the truck upon the side of the truck opposite to that from which the car dumps. When the car box is in place the two hooks attached to this cross bar are hooked over the central shaft. These hooks are fixed by the operatives, and designed to fasten the box in its place. If the hooks are not adjusted or placed upon the shaft, the box becomes insecure, and the jar incident to the v.24 N.Y.S.no.5-26

moving of the train would be sufficient to set the car box moving laterally, and cause the dump. The evidence disclosed that it was in consequence of these hooks becoming detached that the car box slid laterally as the train was moving, and thus caused the accident. The contention on the part of the plaintiff is that this apparatus was insecure, and that the construction of the car was in this regard generically defective. There is some evidence in the case on the part of the plaintiff tending to show that one of these hooks had been slightly straightened, thus rendering it less secure than it would have been if the hook had been as originally intended. While the witnesses on the part of the plaintiff and defendant all agree as to the general construction of this car, there is a marked difference in their testimony as to whether or not it was the best or most approved method of constructing cars for the purpose for which these cars were used, and there is some evidence tending to show that the defendants at this time were using cars for this purpose of a different construction. The controversy in this case turns largely upon the sufficiency of this method of construction of cars, and the condition of this particular car as to the hook which was intended to hold the body in place. The theory of the plaintiff was that this accident occurred by reason of the defect in the car, while the contention of the defendant is that the accident resulted from some negligence on the part of plaintiff's coemployes in not adjusting the hook before the starting of the train; and this difference was sharply contested by the evidence on either side. There is no evidence of negligence by the plaintiff offered by the defendant which tended to produce the injury complained of.

JJ.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK,

R. A. Parmenter, for appellant.

Lansing & Cantwell, (James Lansing, of counsel,) for respondent.

PER CURIAM. The principal question in this case was whether this car was such a reasonably safe car for the plaintiff to work upon as the employer is required to furnish for the use of its employe. This question, as this case was tried, was one of fact, under the evidence, which the jury were called upon to decide, and, as the evidence was conflicting, it became their duty to settle that controversy, and, there being sufficient evidence in support of the plaintiff's theory to uphold the verdict, this court should not interfere with their determination, unless there is something in the amount of the verdict calculated to show that the jury were influenced by prejudice or passion. It is urged on the part of the defendant that the verdict was excessive, and the defendant moved to set it aside on that ground on the trial. We do not think the refusal of the learned trial judge to set aside the verdict as excessive was erroneous. The plaintiff was a man in good health, about 56 years old, and was earning at the time of the accident about $2 per day. The evidence discloses that the injury is of a permanent character, and that the plaintiff, by reason of it, is rendered practically unable to perform manual labor. Upon the evidence, assuming that the jury were right in finding that the injury was the result of defendant's negligence, we cannot see that the verdict of $1,000 was excessive. There were some exceptions taken by the defendant to the ruling of the judge in the reception and rejection of evidence taken upon the trial, and to the judge's charge to the

jury. We have examined these exceptions, and see no error committed by the learned judge for which this judgment should be reversed. Judgment affirmed, with costs.

(70 Hun, 530.)

FREEMAN v. GLENS FALLS PAPER-MILL CO.

(Supreme Court, General Term, Third Department. July 8, 1893.)

1. INJURY TO SERVANT-ELEVATOR SHAFT CONTRIBUTORY NEGLIGENCE. While plaintiff's intestate was at work at the bottom of the elevator shaft in defendant's factory, a barrel on an upper floor was set in motion by the vibrations of the machinery, and, rolling under the bar, which was the only guard to the shaft, fell on intestate. Intestate knew that there was no door to the elevator shaft on the upper floor, and the jury found specially, on sufficient evidence, that if the bar had been in place the barrel would not have fallen. There was evidence that intestate was the last man to enter the elevator on the upper floor, and that he did not replace the bar, as he was required to do by defendant's rules. Held, that the evidence justified a finding of contributory negligence on the part of plaintiff's intestate.

2. SAME ASSUMPTION OF RISKS.

Laws 1887, c. 462, § 8, provides that the owners or lessees of buildings having elevators must provide trap or automatic doors to such elevators. Held, that where the absence of such a door was apparent and well known to plaintiff's intestate, and he had used the elevator constantly, and knew what to do with the device that took the place of a door, he must be considered to have assumed the risks of the absence of the doors, and to have waived compliance with the statute.

Appeal from circuit court, Saratoga county.

Action by Louisa Freeman, administratrix of George Freeman, deceased, against the Glens Falls Paper-Mill Company, for the death of plaintiff's intestate. From a judgment for defendant,

plaintiff appeals. Affirmed.

For decision on former appeal, reversing a judgment in favor of defendant, see 15 N. Y. Supp. 657.

JJ.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK,

T. F. Hamilton, for appellant.

King & Ashley, (J. S. L'Amoreaux, of counsel,) for respondent.

HERRICK, J. The defendant was the owner and operator of a paper and pulp mill. The mill was three stories in height, and stood upon a steep bank. The upper story of the mill was on a level with the street. Communication between the different stories of the building was had by means of an elevator passing up and down through a shaft or well. There was no trap or other door, at the time of the accident, to close the well on the upper floor, through which the elevator passed. On the upper floor this well was closed on three sides. On the remaining side were two bars. The upper bar was fastened to the posts of the well. The lower bar was one that could be moved backward and forward, through clasps attached to the posts of the well, and when in position was

about 24 inches above the level of the floor at one end, and about 25 at the other. The plaintiff's intestate had been in the employ of the defendant about two months before the happening of the accident for which this action is brought, and used the ele vator several times each day. There was evidence that instructions were given by defendant to its employes that when they passed through these bars, to and from the elevator, they should close the lower bar after their passage; that such instructions were given to plaintiff's intestate. It is in evidence that on the day of, and prior to, the accident, plaintiff's intestate, upon entering the ele vator to descend, left the lower bar out; that his attention was called to it by defendant's foreman, who told him that the bar must be kept in place; that it was the custom of defendant to keep, temporarily, machinery, barrels, and other movable articles, on the first or upper flooor. At the time of the accident there were one or more empty barrels upon the first or upper floor. There is evidence to show that just prior to the happening of the accident the plaintiff's intestate, with two or three other workmen, went down the elevator; that the last person to enter the elevator was plaintiff's intestate; that as they descended the elevator the bar was not put in place, and that the elevator did not come back again to the upper floor until after the accident; that about 15 minutes after the elevator went down this last time the plaintiff's intestate, with others, was engaged in placing on the elevator, at the lower floor of the building, a large grindstone, using a stone boat to move the stone to and upon the elevator. While endeavoring to adjust the roller under the stone boat, his head projected beyond the line of the well. An empty oil barrel upon the first or upper floor rolled from its position-apparently put in motion by the vibrations of the mill, caused by the workings of the powerful machinery-into the open well, and fell upon his head, causing his death. To recover the damages resulting from such death, this action was brought. Upon the first trial the plaintiff was nonsuited. She appealed to this court, where the judgment of nonsuit was reversed. 61 Hun, 125, 15 N. Y. Supp. 657. The case, being again tried, was submitted to the jury, who found for the defendant, whereupon the plaintiff appeals to this court for a new trial. Upon this last trial the court submitted four propositions of fact to the jury, as follows:

"(1) Did not the deceased know the manner in which the first or street floor of the mill was used, and the purpose for which it was used? Answer. Yes. (2) Did not the deceased know that any empty barrels were permitted to stand temporarily on the street or first floor? A. Yes. (3) Did not de ceased, on the day of the accident, at any time, see the empty oil barrel standing on the box by the post, near the elevator? A. Yes. (4) If the lower bar had been in position across the elevator well, would the barrel have fallen in? A. No."

There is evidence to sustain all these findings by the jury. They relieve the case of a number of the questions presented when it was formerly before this court. The uncontradicted evidence shows that the intestate must necessarily have known that there was no