APPEAL by the defendant, Arthur McMullen, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of April, 1910, upon the verdict of a jury for $3,000, and also from an order entered in said clerk's office on the 31st day of March, 1910, denying the said defendant's motion for a new trial made upon the minutes.
E. Clyde Sherwood [Allan E. Brosmith, Edward J. Redington and Frank V. Johnson with him on the brief], for the appellant.
Bertrand L. Pettigrew, for the respondent.
The defendant McMullen appeals from a judgment in an action for personal injury in consequence of the alleged negligence of the defendants, and from an order denying his motion for a new trial. The defendant gave no evidence, and the judgment rests on the uncontradicted testimony of plaintiff and his witnesses.
The defendants are contractors, engaged in work on the Pennsylvania railroad. The plaintiff was in their employ. At the place of the accident two excavations, each one hundred feet long, from twenty-five to thirty feet wide, tapering to a width of about ten feet at the ends, and from twelve to fifteen feet deep, had been made, in which coffer dams were built to hold concrete for the foundation of a trestle. The work had been in progress for about three weeks before the accident. During the forenoon of the day on which the plaintiff was injured, he had been employed in patching the north coffer dam. In the afternoon, while engaged in this work, a dump car containing two tons of concrete was run out on a temporary track over the coffer dam, and, without warning of any kind, dumped on the plaintiff, inflicting the injuries for which he has recovered. No concrete had been dumped in either coffer dam before plaintiff was injured, and no notice was given of any intention of dumping of concrete, or that the car, run out on the temporary track, contained concrete which it was proposed to dump into the coffer dam.
The learned trial justice, at the close of plaintiff's evidence, denied a motion to dismiss the complaint, and submitted to the jury the question of the negligence of both parties. He said: 'It is claimed, however, with considerable earnestness, that this place was not safe, and that the want of safety was due to the fact that a proper rule or regulation in the conduct of the business had not been established; that the plaintiff, being in the situation that he was, was entitled to have had
some regulation in the conduct of the business by which he would be given reasonable warning of any danger that might come to him in the natural operations of the work. In other words, it is said that there should have been a rule by which, in some manner, proper notice or warning would be given to the plaintiff when the car of concrete was placed upon the track and was about to be dumped into the hole where he was. You have heard the evidence that has been offered by the plaintiff upon that subject. There has been no evidence offered on the part of the defendants as to anything; and you will determine from that evidence whether there was such a reasonable and proper regulation in the conduct of this business as there should have been, and, also, whether the failure of the defendants to provide such a regulation was the cause of the plaintiff's accident. * * * In view of some possible future action, I desire to submit to you and to have you answer in writing one question, namely: 'Was the work in question so complicated as to require the promulgation and enforcement of rules for the plaintiff's safety?' To that you may answer yes or no, as you shall find the fact to be. Your general verdict will be a verdict for so many dollars for the plaintiff or a verdict for the defendant.' No exceptions were taken to the charge. The jury answered the question submitted to them in the affirmative and rendered a general verdict for the plaintiff for $3,000.
I think that the question as to whether the defendants were negligent in failing to so regulate their business as to provide for notice to workmen in the coffer dam of the time when the dumping of concrete therein was to commence, and in failing to provide for proper warning to such employees of the actual dumping of the concrete, was properly submitted to the jury, and that their conclusion should not be disturbed. The danger arose when the dumping of the concrete into the dam was commenced. The duty of the master to furnish a safe place includes the duty to exercise reasonable care and prudence to guard against such dangers as may reasonably be foreseen and guarded against. ( Pantzar v. Tilly Foster Iron Mining Co., 99 N.Y. 368; McGovern v. C. V. R. R. Co., 123 id. 280.) If the place may become
dangerous by reason of perils not arising from the particular work in which the servant is engaged, it is the master's duty to provide for such warnings as will enable the servant, with the exercise of reasonable care, to guard against such additional danger. That the danger of running a car of concrete over employees working in the coffer dam, for the first time, and discharging its contents into the dam without notice of any kind to such employees, could be reasonably foreseen and guarded against, is so obvious as to require no discussion, and the submission to the jury of the question as to whether, under the circumstances proven, proper rules guarding and protecting employees against such danger were necessary, was proper. ( Eastwood v. Retsof Mining Co., 86 Hun, 91; affd., 152 N.Y. 651; Morgan v. Hudson River O. & I. Co., 133 id. 666; Freemont v. Boston & Maine R. R. Co., 111 A.D. 831; affd., 187 N.Y. 571; Kascsak v. Central Railroad of N. J., 135 A.D. 721.) A master may not place his servant at a work made dangerous by the nature of the work of other servants, without due effort to furnish adequate protection, and escape the result of injury to such servant upon the plea that but for the negligence of such coservants that accident would not have happened. (Western Electric Co. v. Hanselman, 136 F. 564; Johnson v. Terry & Tench Co., Incorporated, 113 A.D. 762; Burns v. Palmer, 107 id. 321.)
Plaintiff's contributory negligence was properly submitted to the jury. It is shown that considerable noise resulted from his work, and if he saw the car on the temporary track, he was not bound to anticipate the discharge of concrete therefrom without proper warning and an opportunity to avoid danger and injury from such contemplated ...