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Walsh v. Continental Iron Works

108 N.Y.S. 1149 Court N.Y. App. Div. Decision date 1908-01-24 English

Decision Majority — PER CURIAM. · Dissent — GAYNOR, J. (dissenting).

Contents
p. 1149
WALSH v. CONTINENTAL IRON WORKS.
(Supreme Court, Appellate Division, Second Department.
January 24, 1908.)

Headnote

Appeal from Trial Term, Kings County. Action by Michael Walsh against the Continental Iron Works. From a judgment entered on dismissal of the complaint at the close of the evidence, and from an order, plaintiff appeals. Affirmed.
Leander B. Faber and Charles H. Street, for appellant. Albert E. Lamb, for respondent.

Judgment and order affirmed, with costs.

A trench six feet in depth which the plaintiff and other workmen were jiist finishing the digging of caVed in and hurt the plaintiff. 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 , 65 N. E. 1116 ; Reilly v. Troy Brick Co., 184 N. Y. 399 , 77 N. E. 385 . In such dangerous 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.

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