The only negligence charged against the defendants is that they “ failed and neglected to furnish plaintiff with a competent and skillful fellow servant to assist him in said work, and *413negligently furnished him with an incompetent and unskillful fellow servant in said work, and neglected to instruct plaintiff in the proper and safe method in which to perform his said work for which he was engaged and to warn him of the dangers incident thereto not patent to his observation.”
The evidence is insufficient to support a finding of negligence upon either of these counts. The work which plaintiff’s fellow-servant was called upon to do was not such as called for any special skill, and in fact such fefiow-servant was quite able to do his part of the w;ork properly, and in the great majority of cases did so. So far as he was concerned the only trouble was that he was careless, and if that carelessness can be said to have been the proximate cause of the accident, it was the negligence of a fellow-servant, not that of the employer.
The evidence does not show that the dangers incident to the work were “not patent to his [plaintiff’s] observation.” What dangers there were were perfectly apparent, and the plaintiff testified that he was perfectly aware of them, in addition to which he was expressly warned by one of the defendants.
In our opinion the verdict was clearly against the evidence.
The judgment and order appealed from should be reversed and a new trial granted, with costs to appellants to abide the event.
Clarke, Dowling and Hotchkiss, JJ., concurred; Ingraham, P. J., dissented.