Finn v. Cassidy

• Decision Date: 05 February 1901
• Citation: 165 N.Y. 584,59 N.E. 311
• Parties: FINN v. CASSIDY et al.
• Court: New York Court of Appeals Court of Appeals

165 N.Y. 584

59 N.E. 311

FINN

v.CASSIDY et al.

Court of Appeals of New York.

Feb. 5, 1901.

Appeal from supreme court, appellate division, Third department.

Action by John Finn against Peter A. Cassidy and Thomas Gallagher for injuries received while in the employment of the defendants. From a decision of the appellate division affirming a judgment in favor of the plaintiff (57 N. Y. Supp. 1138) the defendants appeal. Affirmed.

Parker, C. J., and Gray, J., dissenting.

Lewis E. Carr, for appellants.

Eugene D. Flanigan, for respondent.

O'BRIEN, J.

The jury rendered a verdict of $3,000 for the plaintiff as compensation for the injury received on the 25th day of September, 1894, while in the defendants' service. At that time the defendants, who were general contractors, were engaged in preparing the foundation for a building to be used as a power house by the Albany city waterworks. It seems that it was necessary, in order to get a proper foundation, to excavate a trench to the depth of about 31 feet below the surface of the ground. This trench was not only of the depth stated, but very wide, and it became necessary to shore up or brace the sides in order to keep the earth in place. In carrying along this trench the contractors passed near the foundation of a chimney stack 110 feet high, and it was necessary, in order to secure the chimney, to support its foundation on the side next to the trench. This chimney was intended to be part of the structure, when completed, and rested upon a foundation which extended 20 feet below the surface of the ground, and extended along the line of the trench about 20 feet. In excavating the main trench opposite the stack the wall of the trench on that side had been carried down at an angle, so as to leave what is called a ‘batter’ wall to support the stack. The main trench itself, as already stated, was thoroughly supported by timbers, and no accident happened for want of any care in that respect. But it became necessary to support the chimney in some way, as it was feared that, on account of the depth of the main trench, it would be undermined and fall. In working under the foundation of the chimney, narrow cuts, 3 or 4 feet wide, were made, starting out from the bottom of the main trench, and running at right angles therefrom through the batter wall, and 3 feet under the edge of the foundation of the chimney. These narrow cuts extended upwards to within about a foot of the bottom of the foundation of the chimney, and as fast as they were made, one after another, they were filled in with masonry work, forming a pier, so as to keep the chimney foundation at all times secure. The earth between the tops of the cuts and the bottom of the foundation is described as hardpan, but water had been running down from the top and sides for some time; and thus and batter wall, near the chimney foundation, is supposed to have been weakened and disintegrated from the effects of the water which percolated through it. The plaintiff was a mason's helper, and was at work for the defendants in that capacity at the time of the accident. He was ordered to go down into a cut which had been made the night before, in which to place one of the masonry piers under the foundation, and to level off the bottom in order to prepare to start the pier. One of the defendants went with him down to or near the bottom of the main trench. It does not appear that the plaintiff was ever in this particular place before, or that he knew anything about it. He obeyed the orders of the master, and went into the cut, and commenced to level the bottom; and while doing so the earth from the top and from one side of the cut near the top fell upon and injured him, and for this injury a verdict was awarded to him by the jury.

The plaintiff's action is based upon the claim that the usual and proper precautions were not taken by the defendants to support the overhanging earth between the top of the cut and the bottom of the foundation, and that he was not provided with a reasonably safe place to work in, under the circumstances. The defendants were aware of the actual situation and all of the dangers that attended the performance of work in these narrow cuts after the earth above and upon the sides had been saturated with the percolating water. It was therefore a question of fact for the jury to determine whether the defendants had performed the duty imposed upon a master, to provide the servant with a reasonably safe place in which to perform his work. The court could not have determined that question one way or another as one of law, and it was therefore properly submitted to the jury. It is said, however, that the plaintiff should not have been permitted to recover, as, under the doctrine of obvious risks, he assumed whatever danger there was in doing the work. On this point it must be borne in mind that the plaintiff was unacquainted with the actual perils of the situation. He had not been required, so far as the proof shows, to perform any service of this kind in such a place before. When directed by the master to go into the trench and level it off in order to prepare for the masonry work, he simply obeyed the order. The servant is bound by his contract to obey all reasonable and lawful orders of his master; and the plaintiff, after receiving the order, had to determine, in an emergency, whether he should obey or refuse. It cannot, I think, be said, as matter of law, under these circumstances, that the servant was guilty of contributory negligence, or that he assumed the risk of the dangers incident to a situation with respect to which he could know nothing beyond what was visible at the time. He could not have known, for instance, that the surrounding earth had been saturated with percolating water, or that the walls of the trench or the earth of the arch above had been disturbed or weakened from any such cause. It was, therefore, a fair question for the jury whether the servant was guilty of any carelessness which would bar his right of recovery, or whether he, in obeying the master, had the same knowledge of the dangers incident to the situation that the latter had. On both these questions, therefore, the case was properly submitted to the jury.

It is strenuously argued, however, by the learned counsel for the defendants that this judgment should be reversed upon an exception taken at the trial to certain testimony offered and received in behalf of the plaintiff. The plaintiff's counsel called a civil engineer of eight years' experience in his profession, and who, it appears, had charge of work of like character, and was at the time superintending an excavation about eight miles and a half in extent. The counsel propounded to this witness a hypothetical question embracing all the facts disclosed by the plaintiff's testimony, and concluded with the inquiry whether, in his opinion, that was a proper method of constructing the hole or trench for the purpose of underpinning or supporting the foundation of the chimney. One fact assumed in this question was that neither the sides nor the top of the trench were shored up or supported in any way. This question was objected to on the ground that it was not matter of expert opinion, and also on other grounds not material at this time. The objection was overruled, and the defendants' counsel excepted. The witness answered the question in the negative; that is, his opinion was adverse to the defendants. The plaintiff's counsel followed this question with another, to the effect that assuming the same state of facts as in the last question, and further assuming ‘that you take this excavation at a time when nothing had been done within the bank spoken of as the ‘batter bank,’ underneath the foundation, how, in your opinion, ought that excavation to have been made, so as to be safe for persons working in the bottom of the same?' This question was objected to on the same ground, and there was the same ruling and exception. The answer of the witness was that such excavations ought to be made the necessary width for the pier that was required, and the sides carried down vertically, the earth cleaned off from the bottom of the original foundation (that is, the chimney foundation), and the sides braced; that the bracing should be put in as they went down with the excavation (‘that is, put in the bracing in the excavation under the chimney, and carry it down the full length of the excavation; put in a brace right where the new excavation joined the original foundation wall; but in a crosspiece there; another one down about four feet; have planks on the side up against which these braces would rest’). The witness added: ‘I would place these planks with reference to the face of the chimney foundation beneath it; under it; under the chimney foundation; one on either side, and then a crosspiece. The effect upon the sides of the hole of shoring and bracing would be to have rendered it safe for a man to go in there to work. Bracing and shoring is usual in like cases in other work of similar character.’

I do not think that it was error on the part of the learned trial judge to permit an inquiry of this character to be made of a witness who was clearly an expert. The learned counsel for the defendants contends that it was, and his argument is based upon the proposition that the facts should have been stated, and then the jury permitted to decide for themselves. This is the usual argument urged in all such cases. There is, doubtless, some confusion in the cases with respect to the admissibility of the opinions of experts upon issues such as are involved in this case, but I think the ruling of the learned trial judge was correct, both upon principle and the great weight of authority. It is quite probable that there was not a man upon the jury, unless he happened to be an expert, who would have attempted to solve the problem of properly supporting and sustaining the chimney in...