I am unwilling to agree that in all cases where the plaintiff has recovered a verdict in an action for negligence an error in allowing the plaintiff to swear that he has two children is reversible error. Where a plaintiff in such a cáse, however, would support a judgment upon a verdict for $15,000 the defendant has a.right to insist upon a stricter rule in scrutinizing any evidence improperly admitted which might tend to enhance damages.
I am not entirely satisfied either with the course which this trial took at the Trial Term or with the questions submitted to the jury. If it had not been for the deterioration in the roof timbers caused by the acid-fumes such ah accident as here happened would seem to be chargeable as much to the negligence of the plaintiff as of the defendant. The plaintiff had worked as a carpenter for the defendant for four years doing repair work in the different buildings which *505constituted defendant’s plant. Any weakness of the timbers of that plant from ordinary causes might have been ascertained by plaintiff and should have been ascertained by him before going upon a roof even though the specific direction then given was simply to slatj the roof. It would seem to me difficult to sustain a verdict in this case except upon the theory that the defendant was negligent in not ascertaining the effect of the acid fumes upon the timbers of the mill, and in not informing the plaintiff of such effect.. If a jury should find that such was the duty of the defendant in the exercise of reasonable care for its employees it should then be directed to find whether the plaintiff with such knowledge as he had of the effect of acids upon the wodd should not in the exercise of reasonable care have acquired knowledge of the effect of these acid fumes independent of any information from the defendant. If both of these questions should be found- in favor of the plaintiff, a verdict in' his behalf might have a legal foundation upon which to rest. The verdict here found would be more satisfactory if founded upon a charge specifying in just what particular the defendant might-legally be charged with dereliction.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.