Krauz v. Long Island Railway Co. — 17 N.Y. St. Rep. 684

Majority

p. 684

Charles Krauz as Administrator of William Krauz, App’lt, v. The Long Island Railway Company, Resp’t.

(Supreme Court, General Term, Second Department,

Filed June 25, 1888.)

Headnote

Negligence—Master and servant—When master not guilty of.

On the trial of an action for damages for the death of plaintiff’s intestate alleged to have been caused by defendant’s negligence, it appeared that deceased being in defendant’s employ was directed to assist in cleaning out some water pipes at the bottom of a trench which had been dug; to uncover the pipes The trench was open and there was nothing hidden or concealed, and there was no apparent danger. The deceased went into the excavation, and while at work there the earth caved in upon him and he was suffocated. Neither the defendant nor its agents were in possession of any information beyond that possessed by the deceased. Held, that defendant was not liable. That the complaint was properly dismissed.

Appeal from a judgment in favor of defendant, dismissing plaintiff’s complaint granted upon the trial of this, action at the Queens county circuit. The facts are stated with sufficient fullness in the opinion.

Thomas F. Donnelly, for app’lt; Hinsdale & Sprague,. for resp’t.

This action was brought by the plaintiff as. administrator of William Krauz, deceased, to recover damages for the death of the latter, claimed to have been caused by the negligence of the defendant. The deceased was in the employ of the defendant, and was directed to proceed to Bay Ridge to assist in cleaning out some water pipes at the bottom of a trench which had been dug to uncover the-pipes. The trench by which the pipes were uncovered had been dug by the defendant, and was from eight to ten feet deep, about six feet wide at the top and from two to three feet, wide at the bottom. The deceased went into the excavation to separate the pipes, clean them out and put them, together. While he was so engaged the earth caved in. upon him and he was suffocated.

At the close of the testimony on the part of the plaintiff,, the complaint was dismissed, and the appeal is by the plaintiff from that judgment. Under all the circumstances disclosed by the testimony we can find no negligence on the part of the defendant. The deceased was the servant of. the defendant, and while it was the duty of the defendant, to provide a safe place for the performance of his duty, yet, the trench into which he was directed to perform the duties, assigned to him, was as open and plain and visible to him as to the agents of the company. There was nothing hidden or concealed, and no danger that required skill or experience for its detection. There was no apparent danger. While it is- claimed now on the-part of the; .plaintiff that the-

p. 685

sides of the excavation should have been shored and protected, or braced, yet it does not appear that any visible danger suggested such safeguards and protections at the time.

Neither the defendant nor his agents were in possession of any information beyond that possessed by the deceased Our conclusion is, that the judgment dismissing the complaint should be affirmed with costs.

Barnard, P. J., and Pratt,. J., concur.