197 A.D. 201 | N.Y. App. Div. | 1921
The defendant is a charitable corporation which maintains a cemetery, called the Calvary Cemetery. It sells burial privileges and devotes the money so raised to the - expense of running the cemetery, for religious and -educational purposes, and for charity — primarily in providing graves for those unable to pay for them.
On the 26th of April, 1918, the plaintiff, a gravedigger in the employ of the defendant, was directed to make an excavation for the foundation of a monument, and while so engaged, when he had dug to a required depth of about nine feet, the earth fell upon him and injured him severely.
The learned trial justice held that the question of eontrib.utory negligence and assumption of risk were not in the case, for it was conceded that defendant had not secured compensation for its employees as provided in section 50 of the Workmen’s Compensation Law. The question is thus raised whether the relations between the defendant and "the plaintiff fall within the Workmen’s Compensation Law. If they do, the charge was correct (Workmen’s Compensation Law, § 11); if not, it was erroneous.
We now approach the question whether there was negligence on the part of the defendant. In considering this we eliminate
It is a well-established principle of law that the rule requiring an employer to furnish his servants with a safe place to' work has no application where the employee engages in creating the place which is unsafe because of the very work that he is doing. (McDonough v. Clonbrock Steam Boiler Co., 113 App. Div. 432; Bertolami v. United Engineering & Contracting Co., 120 id. 192.) But this principle does not aid in solving the question under consideration, for that rule rests upon considerations of the assumption of risk and contributory negligence and sometimes upon the fact that there is no element of negligence of the defendant which enters in. (Henry v. Hudson & Manhattan R. R. Co., 201 N. Y. 140.) The plaintiff began digging the excavation on the ■ twenty-fourth of April, a Saturday. He was instructed to carry the excavation to a depth of nine feet. He stopped work Saturday afternoon. It rained Sunday and Sunday night, and he went back to work on Monday morning about seven o’clock. The soil was composed of loam and gravel. The superintendent of the defendant, going his rounds that morning, stopped where the plaintiff was working, because, as he said, he was considering the question whether the work was safe under the circumstances. He looked at it. It seemed to him to be safe. He asked the plaintiff, who was nearly nine feet down, whether everything was all right, and the plaintiff said," Yes.” About .ten o’clock the earth caved in and fell upon plaintiff, and a large stone struck him on the shoulder and injured him severely." It was the custom, sometimes, to shore up the excavation when going down to that depth, and many times during a number of years the graves had been known to cave in in the process of excavation. The superintendent of another cemetery testified that, considering the nature of the soil, it was dangerous to excavate to that depth without shoring up. A question of defendant’s negligence in omitting to provide
The judgment and order should be affirmed, with costs.
Present — Blackmar, P. J., Mills, Putnam, Kelly and Jaycox, JJ.
Judgment and order unanimously affirmed, with costs.