Decided: April 19, 1945.
ANNA DAVIS, ADMINISTRATRIX AD PROSEQUENDUM OF THE ESTATE OF M. RAYMOND DAVIS, JR., DECEASED, APPELLANT,
NEW YORK SHIPBUILDING CORPORATION, A CORPORATION, RESPONDENT
On appeal from the Supreme Court.
For the appellant, Horace G. Brown.
For the respondent, Rocco Palese.
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The opinion of the court was delivered by
BODINE, J. The appeal in this case is from a judgment of nonsuit. The action was styled one at common law to recover damages because of the death of plaintiff's intestate by reason of negligence.
The deceased was in the defendant's employ. In order to cure himself of a minor ill he took what he supposed to be Sal Hepatica but what was in reality potassium cyanide. Upon the Sal Hepatica bottle, in which the poison was placed, was written in three places the word "poison." It appears that a fellow workman was obliged, in the discharge of his duties, to case harden pieces of metal. To do this he used the potassium cyanide. He had on a bench an old bottle which had contained Sal Hepatica. He picked it up and filled it with the potassium cyanide, having printed with red crayon the word mentioned. When not in use the bottle was kept among his personal belongings in a metal tray alongside of his desk.
The deceased apparently searching for something to take to relieve his condition picked up the bottle from the fellow employee's tray in his absence and took the fatal dose. The
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occurrence was unfortunate, but there was nothing in the proofs to charge the respondent with knowledge of the presence of the poison in a re-labeled bottle or of lack of care in any other particular. A prior proceeding in the Compensation Bureau failed. There seems to have been no appeal.
The judgment is affirmed.
For affirmance -- THE CHANCELLOR, CHIEF JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, COLIE, WELLS, RAFFERTY, THOMPSON, DILL, FREUND, JJ. 15.
For reversal -- None.