Majority
p. 895Michael Walsh, Appellant, v. The Continental Iron Works, Respondent.
Headnote
Negligence — master and servant — injury to woi'kman by caving in of trench — duty to sheath trench site feet deep.Appeal by the plaintiff from a judgment entered in the Kings county clerk’s office'on the 3d day of June, 1907, upon a dismissal of the complaint at the close of the evidence at the Kings Trial Term, and also from an order denying a motion for a new trial.
Judgment and order affirmed, with.costs. 2STo opinion. Woodward, Jenks and Miller, JJ., concurred; Gaynor, J., read for reversal, with whom Hooker, J., concurred.
A trench six feet in depth which the plaintiff and other workmen were just finishing the digging of caved in and hurt the plain
p. 896
tiff. ■ The dismissal'of the complaint at the. close of all the evidence was error. No sheathing was furnished to the workmen and the trench was not sheathed up. It was for the jury to say whether this was not neglect of duty by the defendant to its workmen. If the trench were nine or twelve feet deep we would have no question Of this, nor will we when we pause to think how deep six feet is. Only a very few men reach that height. (Farrell v. City of Middletown, 172 N. Y. 666 ; Reilly v. Troy Brick Co., 184 id. 399). In such dangérous employments the' master owes his men intelligent, and sometimes scientific, oversight, care and direction. Whether - the plaintiff acquiesced in the risk was a question of fact. The judgment should be reversed. Hooker,- J., concurred.