Majority
p. 320(80 Hun, 301.) McGONIGLE v. CANTY. (Supreme Court, General Term, Second Department. July 27, 1894.) Argued before BROWN, P. J., and CULLEN, J.
Headnote
Master and Servant—Injury to Servant—Question nor Jury.A tree stood so near the foundation of defendant’s building, on which plaintiff was working, that it had to be cut down, and, when cut, it fell partly on the foundation, injuring plaintiff. The tree was 40 feet high, and stood within 3 feet of the foundation. There was no evidence of any negligence of plaintiff’s fellow servants. Defendant testified that he gave warning some minutes before the tree fell, but plaintiff denied that he received any warning until the tree was actually falling. Helé, that such facts made a case for the jury.
Appeal from circuit court, Westchester county.
Action by John McG-onigle against James P. Canty to recover «damages for personal injuries sustained by the fall of a tree which was cut down by plaintiff’s fellow servants. Prom a judgment entered on a verdict directed by the court in favor of defendant, •and from an order denying a motion for a new trial on the minutes, plaintiff appeals. Reversed.
C. H. & J. A. Young, for appellant.
Martin J. Keogh, for respondent.
This is an appeal from a judgment entered in favor •of the plaintiff on a nonsuit at circuit. The action was servant
p. 321
against master for personal injuries. The defendant was a builder engaged in the erection of a house, the plaintiff a mason in his employ. The plaintiff was at work on the foundations of the building, which were nearly completed. A tree stood so near the foundation that it became necessary to cut it down. When cut, it fell partly on the foundation, and the plaintiff was injured. We think that the complaint should not have been dismissed. The tree was some 40 feet high, and stood within 3 feet of the foundation. The defendant was present, and there was evidence to show that he was personally supervising the work of cutting down the tree, though that work had been started by his foreman. There is no evidence to show that the direction in which the tree fell was due to any negligence of the workmen who cut it. It was, therefore, not the case of negligence by a coservant. But we think that the act itself was inherently dangerous to persons who might be near the tree, •or at least that the jury might have so found; and might also have found that appliances, such as ropes, should have been used, and that the men at work on the foundation should have been warned, and called off, before the tree was about to fall. The defendant testified that he did give such warning some minutes before the tree fell, but the plaintiff denied that he received any word until the tree was actually falling. We think that these facts made a case for the jury. The judgment appealed from should be reversed, and a new trial ordered, costs to abide event.