Burns v. Matthews

• Decision Date: 21 May 1895
• Citation: 146 N.Y. 386,40 N.E. 731
• Parties: BURNS v. MATTHEWS.
• Court: New York Court of Appeals Court of Appeals

146 N.Y. 386

40 N.E. 731

BURNS

v.MATTHEWS.

Court of Appeals of New York.

May 21, 1895.

Appeal from supreme court, general term, Fourth department.

Action by Mary Burns, as administratrix of the estate of William Burns, deceased, against Edward A. Matthews. From a judgment of the general term affirming a judgment entered on a nonsuit, plaintiff appeals. Affirmed.

Bartlett, J., dissenting.

S. Mack Smith, for appellant.

Edmund O'Connor, for respondent.

HAIGHT, J.

This action was brought to recover damages for engligently causing the death of William Burns, the plaintiff's intestate. The accident occurred on the 24th day of June, 1892, by the caving in of the walls of a trench which Burns was digging for a sewer. The only negligence charged against the defendant is in failing to warn Burns not to work at the particular place in the trench where he received his injury. The circumstances are substantially as follows: Matthews, the defendant, was engaged in constructing a sewer through Murray street, in the city of Binghamton. James Pethcal was his foreman in charge of the work. The trench had been excavated, and curbed from the mouth of the sewer north to a point where there was a manhole. Just north of the manhole the trench had been excavated to a depth of from 8 to 10 feet. The foreman then gave direction to the men not to dig it deeper until it was curbed, and at the same time gave direction to the men who were engaged in that kind of work to curb the trench at that place. From that point north the trench had been partially excavated for a distance of 50 feet, varying from 8 to 1 foot in depth, until it approached the surface. Shortly after giving the order for the men to quit digging, a heavy shower came up, and all of the workmen upon the sewer quit work for the remainder of the day. The next morning at 7 o'clock the workmen, about 50 in number, assembled at the tool box, which stood near the manhole, Burns with the rest. It was his first engagement upon this sewer. He had previously been in the employ of the defendant at work upon another sewer, and, having completed his work there, was transferred to this. The foreman, at the hour named, gave a general order to the men to go to work, and each man started, selecting his own place in the trench in which to work. Burns and two others went north of the manhole, and took positions in the trench, and commenced work; Burns at the place where the men the day before had been ordered to quit work until the curbing was placed. The evidence further tends to show that the foreman, at the time of giving the order, instructed the curbers to get their tools, and curb the trench at that place, and that they started to obey this instruction; that the foreman then started down to the south end of the trench, to take the names and time of the men, and while so engaged, and within a very few minutes...