123 N.Y. 1 | NY | 1890
We are of the opinion that the nonsuit 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 *4 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 Ridge 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 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 nonsuit 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 inSlater v. Jewett (
Upon the argument before us the case of Cook v. N.Y.C. H.R.R.R. Co. (
The judgment should be reversed and a new trial granted, costs to abide the event.
All concur.
Judgment reversed. *6