Charles Bausert, Appellant, v. Thompson-Starrett Company, Respondent

Charles Bausert, Appellant, v. Thompson-Starrett Company, Respondent. Second Department, May 1, 1908. Master and servant—injury in unlighted building under construction — obligations of master. A master engaged in the construction of a large building is under a duty to his employees to light the place so that they may be able; by the careful exercise of their senses, to observe dangers. Where, in an action against a master to recover for injuries received by an employee who on reporting for work fell into a pit, the evidence is conflicting as to whether the place was lighted, the negligence of the master and the contributory negligence of the servant are for the jury. Although a workman, when entering a building under construction in response to a notice to report with his tools for work, is not yet under employment, the person summoning him is under a duty to have the place so lighted that the dangers may be seen. Appeal by the plaintiff, Charles Bausert, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 18th day of June, 1907, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 17th day of June, 1907, denying the plaintiff’s motion for a new trial made upon the minutes. Clifford C. Roberts, for the appellant. John C. Robinson [Frank V. Johnson with him on the brief], for the respondent. [MAJORITY — Hooker, J.:] Hooker, J.: In this action for negligence, servant against master, the complaint was dismissed at the close of the plaintiff’s case. The plaintiff has appealed. The defendant was constructing a large building, which was at the time of the accident uncompleted. One of its foremen sent to the plaintiff, who was an' electrician, a postal card, as follows: “ Report at once with tools Ferry & Cliff St. U. T. “ Tours in a rush « GEO. SCHLEICHER. “ Rush “ T. S. Co. “ Will hold as long as possible “ GEO.” The plaintiff went to the building and asked for the electrical foreman and was directed into the basement. He went down the stairway and testifies that it was unlighted and dark; that he called out to the foreman and was answered and told to come across to where the foreman was; that he started slowly and carefully and when five or six feet away from the foot of the stairs he fell into a large pit five feet square, prepared to receive the elevator shaft, which was full of water at the time; he says that he did not see this. The learned court' took the correct view that under all the circumstances, the building being in the process of construction and the floor and apparatus disposed according to the defendant’s convenience for construction, the only obligation the master owed the servant was to light the place sufficiently so that the servant, in the careful exercise of his senses, would obseiwe where danger lay. The learned trial court, however, held as matter of law that the place was sufficiently lighted. It- seems .to me that this was a question of fact for the jury under all the evidence. 'The plaintiff says that it was not lighted; some of his witnesses say there were lights and they describe the location of the lights and how much light they shed. Although the court held that when he answered the postal card calling him to bring his tools there he was not in the employ of the defendant, yet I think there can be no question, irrespective of whether he was actually in the employ at that time, that the defendant owed to this plaintiff the same duty it would have owed him ten minutes later, supposing that within that ten minutes he had been formally employed and sent about some particular business. It was correctly held on the trial that the defendant’s duty was to light the basement sufficiently. The evidence on this branch of the case, however, and that which was offered to show the plaintiff’s freedom from contributory negligence, should have been submitted to the jury. The judgment should, therefore, be reversed and a new trial granted, costs to abide the event. Woodward, Gaynor, Eich and Miller, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.