Golden v. Sieghardt , 53 N.Y.S. 460 ( 1898 )

Rumsey, J. :

The action was brought to recover damages for injuries sustained by the plaintiff while working as a laborer in the employ of the defendant on the 14th of July, 1895. The defendant was in the construction of a sewer at St. Nicholas avenue, betw Hundred and Thirty-seventh and One Hundred and F. ik engaged een One orty-first it was fourteen rk for a accident ear One finch had wo: streets in the city of New York. As apart of this wo: necessary to dig a trench along the avenue to the depth of or fifteen feet. The plaintiff had beén engaged in this couple of weeks at a different place than that where the occurred. On the day he was. hurt he went to- work r Hundred and Forty-first street at a place where the tr already been dug to a considerable depth, but where it was to dig it deeper. necessary

in At the place- where the plaintiff was digging the tre: through made ground, and it was necessary to sustain the that they would not cave in and fall upon the workmen. ' ner in which this was to be’done was well understood by the and was explained by him in his testimony. He said subsjti that after the ground- had been excavated to, the depth of of feet, stringers of plank running horizontally were put side of the- trench and held there by. braces extending fro the other across the trench, and planks were driven perpend: between these stringers and the wall down to the bottom trench. ■ He said further that it was customary' to dig down three feet and then drive down planks, and then dig down three feet, or four or five feet, and then drive the plan' again. The sheet piling - was put in in that way. He further that if in the excavation they came to a rock stickia, the side of the bank while.they were driving down the shee of course the piling liad to stop above that rock because not be driven through the stone. .That, he said, was tlie of the place where he was at work. He testified that t piling had been provided at this place and had been drive until it reached the top of á large stone projecting from of the trench... The plaintiff was at work in the trench op-stone, and without taking any precautions against its fall he trench deeper below it, and while he was thus engaged t caved in'and the stone fell upon him and seriously injured him. This was the plaintiff’s own statement of the manner in which the accident happened. It was made to appear, and was not disputed, rfch went sides so 'he man-plaintiff anti ally, i -couple on each one to ieularly of the two or two or is down testified g out of t piling, it could condition he sheet m down the side posite the dug the th íe ear' that the sheet piling was usually inserted and driven into its place in the trench from time to time by the laborers who were employed in digging, and that at this time and place the planking had been provided; it had been put in place, and the fall of the earth took place solely because the planking had not been driven to the bottom of the trench. It is quite true that just at the place where the earth fell a.stone projected from the bank in such a way that while it was there the piling could not be driven past it; but the plaintiff was aware of that fact, which appears from his testimony, and there is no suggestion that it would have been at all difficult to dig the stone out of the bank and then drive the piling down along the side of the trench to the bottom before continuing the digging. It appears affirmatively, however, that the plaintiff, although he was aware of the location of the stone,- took no steps to protect himself against it or to avoid it, but was at work by the side of it when the earth fell. There is no doubt that if the shoring or sheet piling had been continued the earth would not have fallen. Upon this state of facts the court was asked to charge that the shoring or sheet piling of the trench was a detail of the work, and if the jury found that the accident was due to the failure on the part of the foreman or Roberts (who was a fellow laborer) to shore or sheet pile the trench, the plaintiff could not recover. This the court declined to charge, and in this refusal we think there was serious error.

The rule is well settled that it is the duty of the servant to attend to all details of the work which accompany its performance, and if an accident happens because of his failure to attend to that part of the work the employer is not responsible, if he has used reasonable care to furnish the necessary materials to enable the laborer to do the work properly. (Cullen v. Norton, 126 N. Y. 1; Butler v. Townsend, Id. 105.) When anything is connected with the work, and is an essential part of its performance, is done by persons who are engaged in the prosecution of' the work, and is necessary to be done to insure the safe completion of the work, that thing is a detail of the work within this rule. Especially is this so when the. work itself is the making of a place in which it is to be done. Where that is the case the rule which requires the master to provide a reasonably safe place for his servants in which to do their work, has no application. If in the doing of that work the place becomes unsafe because the servant neglects to use the means which are customary and'which are furnished by the master, to protect himself, it is his own fault, and he cannot charge his employer w.tli negligence and thus render him liable for'the damages which result. (Cook v. N. Y. C. & H. R. R. R. Co., 119 N. Y. 653, cited, by Finch, J., in Kranz v. Long Island Ry. Co., 123 id. 5 ; Loughlin v. State of New York, 105 id. 159.) It is unnecessary to accumulate authorities upon this point, for the rule minst be regarded as thoroughly well settled. The defendant, therefore, was entitled to the charge which he requested, and, for the refusal of the. court to give it, this judgment must be reversed. It is unnecessary to consider any other questions in the case.

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

Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.