Thomas Sawyer, an Infant, by Thomas C. Larkin, His Guardian ad Litem, Respondent, v. Dravo Contracting Company, Appellant

Thomas Sawyer, an Infant, by Thomas C. Larkin, His Guardian ad Litem, Respondent, v. Dravo Contracting Company, Appellant. Master and servant — negligence — inspection. Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 23d day of January, 1911, in favor of the plaintiff; also from an order entered in said clerk’s office on the 23d day of February, 1911, denying a motion for a new trial. [MAJORITY] Judgment and order affirmed, with costs. No opinion. Thomas, Carr, Woodward and Rich, JJ., concurred; Burr, J., read for reversal. [DISSENT — Burr, J.] Burr, J. (dissehting): I dissent. If the master was not negligent for failing to provide a safe place to work, the superintendent was under no obligation to inspect and see whether it was safe. The degree of care required of a superintendent is no higher than that required of the master. It possibly may be that this case does not fall within the doctrine of Citrone v. O'Rourke Engineering Const. Co. (188 N. Y. 339), but plaintiff’s counsel, to avoid a possible exception, conceded that it did. When he conceded that, he conceded away his case, and plaintiff should have been nonsuited. It is impossible to tell under what rule the jury acted.