Bausert v. Thompson-Starrett Co.
110 N.Y.S. 521
N.Y. App. Div.
1908
Check Treatment
Hooker, J.:

In this action for negligence, servant against master, the complaint was dismissed at the close of the plaintiff’s case. The plaintiff has appealed. The defendant was constructing a large building, which was at the time of the accident uncompleted. One of its foremen sent to the plaintiff, who was an' electrician, a postal card, as follows:

“ Report at once with tools Ferry & Cliff St. U. T.
“ Tours in a rush
« GEO. SCHLEICHER.
“ Rush “ T. S. Co.
“ Will hold as long as possible
“ GEO.”

The plaintiff went to the building and asked for the electrical foreman and was directed into the basement. He went down the stairway and testifies that it was unlighted and dark; that he called out to the foreman and was answered and told to come across to where the foreman was; that he started slowly and carefully and when five or six feet away from the foot of the stairs he fell into a large pit five feet square, prepared to receive the elevator shaft, which was full of water at the time; he says that he did not see this. The learned court' took the correct view that under all the circumstances, the building being in the process of construction and the floor and apparatus disposed according to the defendant’s convenience for construction, the only obligation the master owed the servant was to light the place sufficiently so that the servant, in the careful exercise of his senses, would obseiwe where danger lay. The learned trial court, however, held as matter of law that the place was sufficiently lighted. It- seems .to me that this was a question of fact for the jury under all the evidence. 'The plaintiff says *334that it was not lighted; some of his witnesses say there were lights and they describe the location of the lights and how much light they shed. Although the court held that when he answered the postal card calling him to bring his tools there he was not in the employ of the defendant, yet I think there can be no question, irrespective of whether he was actually in the employ at that time, that the defendant owed to this plaintiff the same duty it would have owed him ten minutes later, supposing that within that ten minutes he had been formally employed and sent about some particular business.

It was correctly held on the trial that the defendant’s duty was to light the basement sufficiently. The evidence on this branch of the case, however, and that which was offered to show the plaintiff’s freedom from contributory negligence, should have been submitted to the jury.

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

Woodward, Gaynor, Eich and Miller, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.