17 N.Y.S. 321 | N.Y. Sup. Ct. | 1892
The plaintiff, as the administratrix of the .estate of Joseph Wanamaker, deceased, recovered at the circuit the sum of $5,000 damages against the defendant by reason of its negligence, whereby, through the caving in of a trench in which the deceased was working, the latter lost his life. The decedent was in the employment of the water-works repair department of the city of Rochester, and was engaged in the occupation of connecting and laying water-pipes and doing general repairs. Under the direction of a foreman of a gang of men in the employment of the city, he was, on the 2d day of June, 1890, sent to do certain work on an extension of a water-pipe in a trench on Forth Union street, in that city. This trench bad been dug by a firm of contractors known as “Thomas Oliver & Sons,” under a contract with the city. The trench was upwards of 300 feet in length, about.4’- feet deep," and 2£ feet in width. The plaintiff’s intestate, while engaged in knocking
It is further argued by counsel that the contractors, Thomas Oliver & Sons, if anybody, were solely liable for the death of the intestate. There is evidence to show that Smith, the foreman, said he would go and see Thomas Oliver & Sons for the purpose of cleaning out the ditch and fixing it up so that it could be worked in. But before Oliver & Sons, or their men, had time to come to assist in preparing the ditch for receiving the pipe, the intestate had met his fatal injuries. In entering the trench while Smith was gone for Oliver’s men, Wanainaker did no more than he had seen Smith already do; for the latter had gone down into the trench for the purpose of examining the pipe and seeing what was necessary to be done. No one, so far as the case shows, had discovered any evidence of danger from the walls of the trench; but, on the contrary, their attention and effort was directed solely to bailing out the water which had accumulated there from one source and another, so as to enable the laying of the pipes to proceed. The usual custom of the repair section of the water-works department, to inspect trenches before sending men to place water-pipes in them, was not observed in this instance. We think the question of the defendant’s negligence was properly submitted to the jury, and that the defendant owed a duty to Wanamaker, under the circumstances, to afford to him, for the work required, a reasonably safe trench; and that the deceased had a right to rely upon the implied assurance that the