Kranz v. Long Island R. R. — 33 N.Y. St. Rep. 46

Majority

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Charles Kranz, App’lt, v. The Long Island R. R. Co., Resp’t.^[1]

(Court of Appeals,

Filed October 7, 1890.)

Headnote

1. Negligence—Master and servant—Fellow-servants.

Plaintiff’s intestate, an employee of defendant, was ordered to clean certain underground water-pipes. A trench was opened for that purpose by the section man and laborers under his direction some hours before intestate began work. He entered the trench and began to disconnect the pipes, when the earth caved in and he died of suffocation. Held, that the negligence of the railroad employees in not bracing or protecting the sides of the trench was not one of the risks which deceased assumed.

2. Same.

When the master ordered intestate to perform his work as a machinist in the trenches opened and prepared for him the latter had a right to assume that the place ha.d been made reasonably safe by the master through other and competent servants employed by him.

3. Same.

Whether on all the facts defendant was negligent, was a question of fact for the jury.

Appeal from a judgment of the supreme court, general term, second department, affirming judgment dismissing plaintiff’s complaint.

A. N. Weller, for app’lt; H. B. Hinsdale, for resp’t

We are of opinion that the non-suit granted in this case was erroneous, and that the question of the defendant’s negligence was improperly withheld from the jury.

The plaintiff’s intestate was a young man about eighteen years of age, who had entered the machine shops of the defendant company to learn the trade and pursue that branch of labor. He was ordered to go to the depot at Bay Eidge to clean or aid in cleaning certain water pipes placed under ground at that point. A trench was opened for that purpose by the section man and laborers under his direction some hours before the intestate began work upon

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the pipes. That was a necessary step to furnish him a suitable place and proper opportunity for the performance of his own duty. He entered the trench and began to disconnect the pipes, and while so engaged the earth caved in upon him and he died of suffocation.

The defendant owed to its servant the duty of providing a place reasonably safe for the work which he was directed to do. Those who opened the trench were performing the master’s duty to the deceased in preparing a suitable place and opportunity for the labor of the intestate in discharge of his duty. The general term conceded so much, but held that the danger, if any, was as obvious to the servant as the master, and the former chose to take the risk. That proposition is incorrect as a legal conclusion from the proof, and is scarcely defended on this appeal; but the non-suit is sought to be sustained upon the ground that they who opened the trench were fellow-servants of the intestate engaged with him in a common enterprise, and whose negligence, if any, in not bracing or protecting the sides of the trench was one of the risks which the deceased assumed. I think the decisions of this court are adverse to that view. The general question was very much discussed and quite fully considered in Slater v. Jewett, 85 N. Y., 61 , and later applied to different facts in Pantzar v. Tilly Foster Mining Co., 99 N. Y., 368 , and Benzing v. Steinway, 101 id., 547.

In these cases the duty of the master to exercise reasonable care in furnishing to the servant safe tools and appliances, competent co-servants and a safe place in which to work, was fully recognized. When the master ordered the intestate to perform his work as a machinist in the trenches opened and prepared for him, he had a right to assume that the place had been made reasonably safe -by the master through other and competent servants employed by him. The case is not like Murphy v. Boston & Albany R. R. 88 N. Y, 152 , as the respondent insists, because there no specific duty due from the master to his servant was shown to have been violated. In the present ease there was evidence tending to that result. Whether the trench was opened with reasonable care, whether any danger was obvious to the deceased, whether greater precaution should have been exercised against the falling of the bank, whether the agents employed were skillful or inexperienced, and so whether on all the facts the defendant was negligent, are questions of fact to be solved by the jury.

Upon the argument before us the case of Cook v. N. Y. C., etc., R. R. Co., 119 N. Y., 653 ; 29 N. Y. State Rep., 994, recently affirmed without an opinion, was called to the attention of counsel. The cause of the injury in that case was a caving in of the sides of a trench, as in the action before us. The respondent suggests to us that the decision of the Cook case turned wholly upon the defendant’s negligence in failing to employ a competent superintendent. That is true. The workman there was steadily making, or assisting in making his own place in which to work. If it became unsafe, his own negligence co-operated and barred his remedy unless he acted under the master’s orders given by an incompetent superintendent. But here the deceased had nothing

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to do with the preparation of the trench. It was prepared, not-by him, but for him, and reasonable care in its preparation, we think, was the master’s duty to the servant. Indeed our attention is called to some evidence introduced without objection tending to show want of skill and experience on the part of the section master who directed the excavation. We form no opinion upon the facts and express none; but leave the case for the judgment of a jury.

The judgment should be reversed, and a new trial granted, costs-to abide the event.

All concur.