Joseph Schmit, Respondent, v. James F. Gillen, Appellant; James Goulden, Respondent, v. James F. Gillen, Appellant

Joseph Schmit, Respondent, v. James F. Gillen, Appellant. James Goulden, Respondent, v. James F. Gillen, Appellant. Negligence — a workman laying pipe at the bottom of a trench is not a fellow-servant of those who opened the trench — what is not contributory negligence — refusal to charge a proposition not pi'esenied by the evidence. Workmen engaged in laying pipe at the bottom of a sewer trench are not fellow-servants of employees of the common master who opened the trench, and do not assume the risk incident to the failure of the latter to properly sheath or brace the trench. For such negligence, resulting in injury to the workmen at the bottom of the trench, the master is liable. Where, in an action to recover damages for injuries thus sustained, the plaintiff testifies that he went into the trench by the direction of the foreman, and that the master assured him that everything was all right and he need not be afraid, and that he observed no indications of danger, it cannot be said, as matter of law, that he was guilty of contributory negligence. In such an action, the refusal of the court to charge the jury that the plaintiff ■ cannot recover if the injury was caused by the negligence of a fellow-servant, does not constitute error, where there is no evidence to support a finding that the accident was so caused. Appeal by James F. Gillen, the defendant in each of the above-entitled actions, from judgments of the Supreme Court in favor of the plaintiffs in each of said actions, entered in the office of the clerk of the county of Queens on the 24th day of October, 1898, upon verdicts of a jury, both eases being tried together, and also from orders made in each of said actions and entered in said clerk’s office on the 24th day of October, 1898, denying the defendant’s motions for a new trial made upon the minutes. , . J. Stewart Ross, for the appellant. James C. Van Siclen, for the respondents. [MAJORITY — Willard Bartlett, J.:] Willard Bartlett, J.: The plaintiffs have recovered damages against the defendant for personal injuries sustained by them while engaged as laborers in his employ in the work of laying pipe along the bottom of a sewer trench in the village of Jamaica. The defendant was a general contractor, who had undertaken the construction of a system of village sewers. It was his duty to exercise reasonable care to make the trench where the plaintiffs were injured a safe place for them to work in while laying the sewer pipe, which they were directed to place in position therein. (Kranz v. L. I. R. Co., 123 N. Y. 1.) The persons who opened the trench are not to be deemed fellow-servants whose negligence in failing to sheath it properly was a risk which the plaintiffs assumed. (Id.) The plaintiff Schmit testified that the defendant’s foreman put him in the ditch; that the defendant saw him there, and that they said everything was all right and he need not be afraid. The plaintiff Goulden helped Schmit in laying the pipe, and swore that he did so by the direction of the defendant’s foreman. Both plaintiffs declared that they observed nothing which served to warn them of any danger. Under the circumstances, they were not chargeable with contributory negligence as matter of law. (Doyle v. Baird, 15 Daly, 287.) - There was evidence from which the jury could find that the trench was over six feet in depth at the place where the plaintiffs were at work when the side caved in upon them, and that there was no sheathing at this point, the only support to the sides being furnished by braces ten to twelve feet apart. It was also proved by the foreman of sewer construction, employed by the defendant and called as a witness in his behalf, that work of this kind was usually done by sheathing it in some places, or bracing it in others by braces five feet apart, according to the character of the ground, the custom being in sandy soil to sheath the sides after getting down to a depth of five feet. The jury may well have found that the depth of the trench and the character of the soil required sheathing or a larger number of braces at the place where the accident occurred, and that the failure to provide one safeguard or the other constituted negligence on the part of the master. Fo exceptions were taken to the charge or to the refusals of the-court tp charge as requested by defendant’s counsel. It is argued,, however, that the learned trial judge committed several errors-injurious to the defendant, not only in the instructions actually given to the jury, but also in declining to instruct them as desired by defendant’s counsel; and we are asked to grant a new trial on. account of these alleged errors, notwithstanding the absence of exceptions. But a careful examination of what the court charged and refused to charge satisfies us that the learned trial judge did not err in either respect, when we consider the proof before the jury to which his instructions related. We do not deem it necessary to discuss in detail all these alleged errors; but two of them require notice. It is argued that the court ought not to have charged the jury that they might consider the manner in which the shoring and supporting-of the trench was done, because evidence offered in behalf of the-defendant as to what was customary in the way of bracing a sewer-ditch of this kind was excluded on the trial. It is true that such a ruling was made when the evidence was first offered, but the error-in excluding it was shortly afterward corrected, and there was ample proof on the subject before the case went to the jury. It is also-said that the court erred in refusing to charge that the verdict should be in favor of the defendant if the plaintiffs were injured by reason of the negligence of a fellow-servant. This refusal, however,, was justified by the fact that there was no evidence which would have supported a finding that the accident was thus caused. There is a stipulation in the case on appeal that no question will be made that the verdict is excessive in either case. Fo other'matter demands our consideration, and it follows that the judgment and order in each action should be affirmed. Judgment and order unanimously affirmed, with costs.