Doyle v. Baird — 25 N.Y. St. Rep. 749

Majority

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Dominick Doyle, Plt’ff and App’lt, v. James Baird, Def’t and Resp’t.

(New York Common Pleas, General Term,

Filed June 3, 1889.)

Headnote

1. Negligence—Dangerous premises—When prima case made out.

The plaintiff was injured by the caving in of a trench which had been dug by defendant for laying water pipe. The trench was about nine feet deep and seven feet wide, and the plaintiff who was an employee of the defendant was ordered by the defendant’s foreman to go down to the bottom of the trench, and prepare the bed place for the pipe then ready to be lowered; while so engaged, the sides of the trench caved in, and the plaintiff was injured. There was testimony that there were no supports of any kind to prevent the banks from caving in, and experts testified that some precautions in the way of bracings or careful sloping in excavations were necessary. This evidence made out a prima facia case of negligence on the part of the defendant, which should have been submitted to the jury.

:2. Same—Contributory negligence.

The plaintiff was not guilty of contributory negligence in obeying the foreman’s command, and going to work at the bottom of the trench, although he had the same opportunity of observing any apparent insecurity which the foreman or even the master had. Whether the banks of a deep trench will cave in involves a question in civil engineering. A workman cannot be expected, at his peril, to solve that question. When his master directs him to enter an excavation, he has a right to assume that the place has been rendered safe. McGrath v. Walsh, 23 N. Y. State Rep., 63, distinguished, and Panizar v. Tilly Poster Iron Mining Go., 99 N. Y., 368 , followed.

On the 17th of September, 1880, the respondent was engaged, under a contract with the city of New York, in laying large water mains or pipes in Eighty-fifth street. Eor such purpose, a cut had been excavated about nine feet deep and seven feet wide. Appellant was one of the employees of respondent, and on said day he was ordered by respondent’s foreman to go to the bottom of said cut and prepare the bed-place for one of the mains then about to be lowered. While so engaged, the sides of the trench caved in on the appellant and his fellow workmen. He sustained ¡serious injury, which he claims is in. law to be attributed to the negligence of his employer in not properly guarding and bracing the walls of the ditch; and this action is to recover damages for such injury.

Upon the trial, the complaint was dismissed at the conclusion of the plaintiff’s case.

The facts appear in the opinion.

A. and T. B. Wakeman, for app’lt; Elliott Sandford and <7. W. West, for resp’t.

Counsel for respondent contends that there is no proof in the case tending to show that the employer had neglected to protect the sidewalls 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

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Doyle also says that “There were no timber or braces that I saw at 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 neéessary. 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 case, 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 dedúced-fróm 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 safe-guards 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 apparent insecurity which said foreman, or even the master, had.

At the last general term of this court, in the case of McGrath v. Walsh (23 N. Y. State Rep., 63), we held, following the direct intimation of the court of appeals in Cahill v. Hilton ( 106 N. Y., 512 ; 11 N. Y. State Rep., 26) that a workman of ordinary" skill must be presumed to be acquainted with such a simple implement as a ladder, and that if he continued-work on one, after he had discovered that the rounds would turn under his feet, he was guilty of contributory negligence if injured in consequence of such defect. Here the cáse is quite different. Whether the banks of a deep trench will, or will not, cave in, involves a question in civil engineering. A workman of ordinary intelligence cannot be required, at his peril, to solve a problem fitted only for specially educated experts. When his master commands him to enter an excavation and perform certain work there, he has a right to assume that the place, and all the existing and necessary conditions for the performance of such work have been rendered safe.

W e think the views above expressed are directly within the spirit and reasoning of the decision in Pantzar v. Tilly Foster Iron Mining Company ( 99 N. Y., 368 ), in which case, as in the case at bar, the defendant endeavored, without success, to escape all liability, on the ground that the

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command to enter the unsafe place emanated from a foreman, and not from the master in person.

The judgment appealed from should be reversed, and a new trial ordered, with costs to appellant to abide the event.

Allen and Bookstaver, JJ., concur.