Bertolami v. United Engineering & Contracting Co.

The plaintiff’s intestate, while in the employ of the defendant, received injuries which resulted in his death, and his administratrix commenced this action to recover the damages sustained thereby. The court submitted the case to the jury, who found a verdict for the plaintiff for $10,000. The action is based upon the employer’s liability act (chapter 600, p. If48, of the Laws of 1903), which provides that, where personal injury is caused to an employé who is

“An employe by entering upon or. continuing in the service of the employer shall be presumed to have assented to the nec-essary risks of the occupation or employment and no others. The necessary risks of the occupation or employment shall, in ail cases arising after this act takes effect be considered as including those risks, and those only, inherent in the nature of the business which remain after the employer has exercised due care in providing for the safety of his employés, and has complied with the laws affecting or regulating-such business or occupation for the greater safety of such employés. * * * The fact that the employe continued in the service of the employer in the same place and course of employment after the discovery by such employs, or after he had been informed of, the danger of personal injury therefrom, shall not, as a matter of law, be considered as an assent by such employe to the existence or continuance of such risks of personal injury therefrom, or as negligence contributing to such injury. The question whether thé employé understood and assumed the risk of such injury, or was guilty of contributory negligence by his continuance in the same place and course of employment with knowledge of the risk of injury shall be one of fact subject to the usual powers of the court in a proper case to set aside a verdict rendered contrary to the evidence.”

The plaintiff’s intestate was one of a gang of men employed by the defendant in the excavation of a tunnel 90 feet below the level of the street. On August 7, 1906, plaintiff’s intestate went to work at 7 o’clock at night, to work until 6 o’clock in the morning. It would appear that the tunneling at this point was through rock, and men were engaged in drilling holes therein and blasting out with explosives. The tunnel was between 35 and 40 feet wide and about 13 feet in height. A fellow workman of plaintiff’s intestate testified: That at regular intervals of 30 or 40 feet there were five iron columns placed' to support the roof of the tunnel. On the top of these columns there were blocks which were jacked up against the roof. That steam drills were attached to these columns. That there was- a man in charge of this gang of men, named Garniel, from whom the members of the gang received their orders as to the work they were to do. Some time prior to the accident Garniel, the superintendent, spoke to the witness, who was also a rock driller, directing him to take one of these columns down; but he refused to do so, as he did not like the appearance of the roof of the tunnel. Subsequently Garniel gave instructions to some Italians who were working there, and these Italians took the central column down. That the rock at this point looked to the witness as though it might fall at any time, and a space above this column of 4 or 5 feet was left entirely unsupported after the removal of the column. Subsequently a stone fell from the roof of the tunnel, at the point from which this column had been removed, upon the plaintiff’s intestate, instantly killing him. The rock fell about 10 or 15 minutes after the column had been removed. The plaintiff’s intestate was one of the men who removed the column, and at the time of the accident he was putting, in timbers to block up the roof of the tunnel where the column had been removed. There was also evidence

On behalf of the defendant the foreman testified that the plaintiff’s intestate had been at work blocking and wedging the blocks to support the roof; that the blocking had been done at the time the column was taken down right up to the'column on the left-hand side; tb,at men had begun blocking on the right-hand side within about 20 inches from the column; that the plaintiff’s intestate helped the witness to take down-the column, so that the blocking could be continued; that before they took the column down the plaintiff’s intestate was asked if the roof was secure, to which he replied that it was; that the column 'was then taken down, and the men, including the plaintiff’s intestate, commenced to.block up the roof with the timbers. The foreman left the defendant’s employ two days after the accident. Before the columns were taken down the foreman examined the rock and found it kind of soft, but a little further in it was hard and solid; that he thought it was the right thing to remove the column.

The inference from the testimony is that as the work advanced the iron columns were taken down and carried forward; the timber supports to the roof and sides taking their place. The plaintiff’s- intestate, with the-other men, was thus engaged in substituting the timber support for the support furnished by the iron columns. It does not appear whether or not it was necessary to remove the columns to insert the timber supports, but the natural inference would be that the supports could not be completed until after the columns were taken away. The evidence is that the timbering had been completed up to the column on the left-hand side, but there was a space variously estimated at from two to seven feet on the left side of the column in which there was no support to the roof. The men engaged in the work of substituting the timber for the iron columns took down the column and continued at work inserting the timber to take its place, and while thus engaged the piece of rock fell.

But for the provisions of the employer’s liability act it would be clear that there would be no liability of the defendant for this accident. It has been lately held that the rule requiring an employer to furnish his workmen with a safe place to work has no application to a case where the men were engaged in creating the place, which is unsafe because of the very work that they are doing. See Citrone v. O’Rourke Engineering C. Co., 188 N. Y. 339 , 80 N. E. 1092 . In that case, as in this, the work considered as a whole was the construction of a trench through earth and rock in the city of New York. There, as here, there was first blasting, and after the blasting the removal of the blasted material. The plaintiff was one of a gang „of workmen who removed the blasted material after the blast, and while thus employed was injured by the falling of some loose stone and earth from the side of the trench. The place where the accident occurred was a trench 14 feet deep and 6 or 7 feet wide, and there was shoring at the side to the

“Whatever was the danger to which the men were exposed it was due to the manner in which the work was prosecuted. -A degree o£ safety near the head of the trench was constantly subject to change as the trench was extended. Under such circumstances the rule of law which makes it incumbent upon an employer to provide or maintain a safe place in which his employes are to do their work has no application.”

The rule thus stated is based upon the fact that, where the men are engaged in excavating a trench or tunnel, from the nature of the work to be done the place where the men are required to work is the head of the excavation. The only place that can be furnished to the man is the place in the tunnel at the point of excavation. From the necessity of the case at that place there is danger of the roof or rock caving in; but, as it is the only place that can be furnished for the men engaged in excavating to work in, it is quite impossible for the master to furnish his workmen any other place to do their work. As there could be no other place for the men to work, there could be no liability7 on the part of the defendant for furnishing them with this place in which to work; but it seems to me that under the employer’s liability act there is a further question as to whether there was negligence of the employer or his superintendent which caused the injury, and thus in this case the court was required to submit that question to the jury.

The jury were instructed that the defendant owed the decedent a duty to prosecute this work without any negligence upon its part and in the exercise of due care and diligence; that to render the defendant liable there must have been some positive fault, either of commission or omission, on its part; that if the jury found that the injury to the decedent resulted or was caused by neglect of the defendant in failing to use due care in view of all the circumstances, and that the decedent was free from any negligence on his part contributing to the accident, then the verdict should be for the plaintiff. The defendant then asked the court to charge that:

“The plaintiff has failed to establish that the defendant was negligent in furnishing a reasonably safe place to work, reasonably safe appliances to work with, and competent fellow servants.”

This was refused, and to that the defendant excepted. It seems to me that the defendant was entitled to this charge. As we have seen, the question of a safe place to work was not presented. The only place at which the men engaged in excavating this tunnel could work was where the excavation was required, and the only place they could work at-putting in this timber was where the timber was to be put" in. The men were engaged in supporting the roof and sides of the tunnel to continue the excavation. To do the work that they were

The defendant also asked the court to charge that:

“If Baptiste, the alleged foreman, believed that it was safe to remove the column supporting the roof, and acting on such belief and in the exercise of ordinary care and prudence caused the same to be removed1, the defendant ■Is entitled to a verdict.”

I think the defendant was entitled to this charge. Baptiste had sworn that he examined this roof before he removed the column with a crow-bar; that he found the roof soft at the surface, but further in solid; that he believed it was entirely safe to remove the column; and .that he had consulted plaintiff’s,intestate, who, it would appear, knew as much about the situation as the foreman, and plaintiff’s intestate had said it was safe; that, -acting on what was- his judgment, reinforced by the judgment of plaintiff’s intestate, the foreman,gave the orders, and the plaintiff’s intestate and the other workmen removed the column—the plaintiff’s intestate then resuming work in inserting timbers to block up the roof and sides of the tunnel. 'Now, if after this examination the foreman honestly believed that it was safe to remove the column, and acting on such belief it was the exercise of ordinary care and prudence to remove the column, he was not negligent. Negligence is acting as a man of ordinary care and prudence would not act under the circumstances, and if the act complained of was done in the honest belief that it was a safe and proper thing to do, and in acting upon that belief he acted with ordinary care and prudence, there is no negligence.

I also think that the damages are excessive; but, as there must be a new trial, it is not necessary to consider that question.

' The judgment and order should therefore be reversed, and a new .trial ordered, with costs to appellant to abide event.

McLAUGHLIN, CLARKE, and SCOTT, JJ., concur. LAUGH-LIN, J., concurs in result.