Doyle v. Baird

Counsel for respondent contends that there is no proof in the case tending to show that the employer had neglected to protect the side walls of the trench so that a cave-in could not occur. But in this he errs. Plaintiff testifies that “ there had not been any supports of any kind used to sustain the banks at the time.” The witness Daniel Doyle also says that “there were no timber or braces that I saw in that point. I mean that open space. ” This evidence must be considered, in connection with the fact that all of plaintiff’s expert witnesses concur in the opinion that in a trench of the general size and character here described, dug in made ground, some precautions in the way of bracings, or large girders, or careful sloping in the excavation, are necessary. It is true that said experts substantially agree in the belief that what amounts to reasonable care in any particular case must be determined by the peculiar facts of such ease, and that they do not express the absolute opinion that respondent had been negligent, because they had not examined the trench in question. Nevertheless plaintiff himself and his fellow-workmen described the trench in Eighty-Fifth street with sufficient particularity for the jury to apply thereto the general principles to be deduced from the evidence of the experts. It was alleged on behalf of plaintiff that defendant had caused to be excavated a deep and wide trench, with sides “almost perpendicular, ” and that he had omitted all artificial safeguards against a caving-in of the ground, which, moreover, was “made” ground. These facts, in conjunction with the testimony of said experts, made out a prima facie case of negligence on the part of the master.

Nor do we think contributory negligence is to be imputed to the appellant because he obeyed the foreman’s command, and went to work at the bottom of the trench, although he had the same opportunity of observing any appar