Majority
p. 111(53 Misc. Rep. 641) GRAHAM v. VAN HAUTEN. (Supreme Court, Appellate Term. March 14, 1907.) Argued before GILDERSLEEVE, P. J., and DAVIS and HENDRICK, JJ.
Headnote
Master and Servant—Injuries to Servant—Assurance oe Employes.Where plaintiff, after being assured by defendant’s foreman that no one was at work on an upper floor, was injured by a brick falling through the negligence of a fellow servant, defendant was liable.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 515-534.]
Appeal from Municipal Court, Borough of Manhattan, Sixth District.
Action by William Graham against Erskine Van Hauten. From a judgment in the Municipal Court for the plaintiff, the defendant appeals. Affirmed.
Frank Verner Johnson, for appellant.
Abraham Oberstein, for respondent.
Plaintiff recovered a judgment for injuries received by him caused by a falling brick striking him on the head while at work for the defendant on a building. • There was sufficient evidence from which it could be said that the falling of the brick was caused by some of the defendant’s workmen then engaged in work over the floor upon which the plaintiff was at work. Plaintiff was removing dirt from the floor and conveying it in a basket out on a platform in'front of the house, and workmen were over him. He was directed by the defendant’s foreman to do this work, and was
p. 112
assured there was no one at work overhead; that the workmen engaged on the upper floor had gone for the day. Upon 'this assurance of safety he continued, his work, and while at work received the injury. The appellant only claims that the injury was caused by the negligence of a fellow servant, but he fails to note that the plaintiff had an absolute assurance of his safety, and thus the defendant is liable. The judgment should be affirmed, with costs.
Judgment affirmed, with costs. All concur.