40 N.Y.S. 222 | N.Y. App. Div. | 1896
This is an appeal from a judgment entered upon a verdict in favor of the plaintiff in an action to recover damages for alleged negligence of the defendants or their servants, causing the death of the plaintiff’s intestate. The proof show'ed that the plaintiff’s intestate was engaged at work as a laborer, employed by the defendants, in the interior of a caisson placed in the Harlem river, and that on the 19th day of May, 1895, he .was at work with others in that caisson beneath the bed of the river. During the progress of that work it became necessary to remove by blasting an iron cylinder filled in with concrete, which had formed one of the piers of an old bridge. The blast was discharged and a fragment of tli& cylinder was thrown by the explosion a distance of some twenty feet or more, and struck and killed the plaintiff’s intestate. It appeared in evidence that the blast was not covered by logs fastened upon it to prevent the scattering of missiles or projectiles from the material that was being removed, and it was claimed on the part of the plaintiff that that which constituted the negligence of the defendants or their servants was the failure to pro vide the safeguard or security which would have been furnished by logs placed over and upon the blast prior to its being discharged. There was conflicting evidence as to the necessity or propriety of such means of prevention of accident, and also upon the subject' of the effect of such a precaution, even if it had been adopted, it being contended by the defendants that even had the device referred to been used, it would only have resulted in preventing the fragments of material dislodged by the explosion flying upward and not laterally, it being, quite clear that the missile which killed the plaintiff’s intestate was thrown laterally and not upward.
But it further appeared in the proofs that the plaintiff’s intestate was not ignorant of what was necessary and proper in the preparation and firing of blasts in underground work. He had been for years employed in making excavations under the beds of rivers, and he had been for three days engaged at work in this caisson, where much blasting was done daily; and it appeared, by the testimony of a witness, that the plaintiff’s intestate had some direct connection either with the preparation or the firing of the particular blast, the explosion of which caused his death. The witness Crowley says that the plaintiff’s intestate assisted him in attaching or arranging the wires connected with the battery which discharged the blast. There was enough in the case to allow the defendants to go to the jury on the question of the knowledge of the plaintiff’s intestate of the insecure condition of the blast, if it were insecure; and to authorize the claim that, with such knowledge, the plaintiff’s intestate assumed the risk to which he was exposed by reason of such insecurity.
At the close of the remarks of the learned judge in charging the jury, the defendant’s counsel requested the court to instruct them that “if the plaintiff knew, or by the use of ordinary observation ought to have known, of the absence .of any appliances to cover the blast, that his continuing in the employment with such knowledge does not entitle him to recover in this action, the risk incurred being one assumed by him.” Hpon the proofs and under the charge of the learned judge as to the imputed negligence, the defendants were certainly entitled to this instruction if it were asked in time. But the court declined to pass upon it, saying: “ I cannot
The O'Neil case is not an authority for the contention that the right of counsel to submit requests to charge is absolutely within the control of the judge presiding at the trial; but only for the propo-. sition that where there is an abuse by counsel of his right, it is within the power and discretion of the court to refuse to hear him. There was certainly in this case no attempt either to vex the court, to prolong the proceeding or to get before the jury improper or immaterial matter. It was a vital question in the case, one ivhich should have been submitted; and, for the error in refusing to present it to the jury, the judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.
Van Brunt, P. J., Williams, O’Brien and Ingraham, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.