Opinion
Submitted January 16, 1914
Decided February 3, 1914
Philip S. Saitta for appellant.
M.J. Wright for respondent.
The witnesses in this case were largely foreigners and not well acquainted with our language, and there was some confusion in the trial of the case so that we are unable to determine with perfect accuracy just what facts the evidence tended to establish. Getting at this as best we can, however, it would appear that the jury might have found the following substantial facts:
The defendant was a contractor engaged in making an excavation. At the time of the accident this excavation had reached a depth of ten or twelve feet. On the top of the embankment thus formed there were part of a trunk and the roots of a tree. At least two days before the accident the roots had been uncovered and the entire mass was in a shaky, falling condition. The defendant seems to have had personal charge of the work, and at any rate his attention was called to this situation two days before the accident, but nothing was done to remedy it. The plaintiff came to work, for the first time after this situation arose, on the morning of the accident and defendant ordered him to go to work within a few feet of the tree. It did not appear that he noticed, so as to fully appreciate, the situation, for he was not at work on or in connection with the tree, and after he had been there a few moments the trunk slipped down upon him and injured him.
Under these circumstances we think that the jury might have found that the defendant had knowledge of the dangerous situation, and that he was guilty of negligence in that he neither remedied it nor gave the plaintiff any notice thereof or protection against the same when he ordered him to go to work at a point where he was liable to be injured. ( Simone v. Kirk, 173 N.Y. 7; Henry v. Hudson Manh. R.R. Co., 201 N.Y. 140.)
The judgments of the Appellate Division and Trial Term should be reversed and a new trial granted, costs to abide event.
WILLARD BARTLETT, Ch. J., WERNER, CHASE, COLLIN, CUDDEBACK and MILLER, JJ., concur.
Judgments reversed, etc.