Baird v. Reilly
| Decision Date | 25 January 1899 |
| Docket Number | 46. |
| Citation | 92 F. 884 |
| Parties | BAIRD v. REILLY. |
| Court | U.S. Court of Appeals — Second Circuit |
J Woolsey Shepard, for plaintiff in error.
H. C Smyth, for defendant in error.
Before WALLACE and SHIPMAN, Circuit Judges.
This is an action for negligence, brought to recover for injuries received by the plaintiff, while in the employ of the defendant, by the caving in of a trench. The defendant, under a contract with the city of New York, was laying a system of water pipes in one of the streets, and for that purpose had caused a trench to be made, about ten feet deep and five or six feet wide. The plaintiff had nothing to do with cutting the trench, which had been going on for several weeks, but was one of a gang of men sent into it, after it had been cut to lay the pipes upon the bottom. There was evidence upon the trial tending to show that, at that part of the trench which caved in, it had been cut through soil which in places was loose and soft. A steam engine and derrick, weighing about 20 tons, mounted upon a four-wheel platform straddling the trench, had been used in the progress of the work over the place which caved in for several days previously. A competent foreman was in charge of the general work for the defendant, and he had been provided with all the necessary materials and appliances for protecting the side walls of the trench, but had not used them at that part of the work, because, in his judgment, it was not necessary. Error is assigned of the refusal of the trial judge to direct a verdict for the defendant, of his refusal to instruct the jury as requested on the part of the defendant, and of various rulings upon the trial in respect to the evidence.
The case was submitted to the jury by the trial judge upon instructions which accurately and adequately stated the rules of law applicable to the controversy, and presented the real questions of fact which the jury were called upon to decide. As there were questions of fact, which could not properly have been taken from the consideration of the jury, his refusal to direct a verdict was plainly right, and does not merit discussion. The request to instruct the jury, which he refused, was, in substance, that if they found from the evidence that the defendant had selected a foreman who was competent to take charge of the work, and had given him proper instructions, and if the cave-in occurred by reason of the foreman's subsequent neglect to shore up the trench the neglect, if there was any, which caused the accident, was that of a co-servant of the plaintiff, and the defendant was not responsible. An employer is not relieved from responsibility to an employe, who has been injured in consequence of his...
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... ... Co. v. Forgy, 246 F. 193; ... Kennedy v. Grace & Hyde Co., 92 F. 116, affirmed, 99 ... F. 679, 40 C. C. A. 69; Baird v. Reilly, 92 F. 884, ... 35 C. C. A. 78; Ondis v. Great A. & P. Tea Co., 82 ... N. J. L. 511; 81 A. 856, 46 L. R. A. (N. S.) 777; ... ...
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