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Wood v. BURKE

106 N.Y.S. 204 Court N.Y. App. Div. Decision date 1907-10-18 English

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p. 204
(121 App. Div. 542.)
WOOD v. LUKE A. BURKE & SONS.
(Supreme Court, Appellate Division, Second Department.
October 18, 1907.)

Headnote

Master and Servant—Action by Servant for Injury—Instructions—Master Not an Insurer.
In an action by a servant, a bricklayer, for an injury sustained by being struck by an object falling from an upper part of the building, where the court has instructed as to the duty of the master to furnish plaintiff a safe place to work, it is error to refuse to instruct that the master is never the insurer of the safety of a workman on a building.
Appeal from Municipal Court, Borough of Queens, First District.
Action by Percival J. Wood against Luke A. Burke & Sons. From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered.
Argued before JFNKS, HOOKER, GAYNOR, RICH, and MILLER, JJ.
Allan E. Brosmith, for appellants.
George F. Hickey (William E. Stewart, on the brief), for respondent.

The action is by servant against master for negligence. The plaintiff, while at work as a bricklayer in a building in the course of construction, was struck by a falling thing from the upper part of the building and injured. The alleged negligence is that the master failed to furnish a safe and proper place for the servant to work in, and that the servant was put at work in a place not properly protected against the fall of such things. The Municipal Court was requested to charge the jury that the master is never the insurer of the safety of a workman on a building, and the court declined so to charge, under exception. While the request was general, we cannot say that it was not germane, especially in view of the fact that the court had already charged the jury_ that it was the duty of the master to give the employé a safe place to work in. We cannot say that the effect of such a charge was not to instruct the jury that the master was held to a higher rule of liability than that imposed upon him by law.

For these reasons, we think the judgment must be reversed, and a new trial ordered; costs to abide the event.