Regan v. Palo

• Decision Date: 18 October 1898
• Citation: 62 N.J.L. 30,41 A. 364
• Parties: REGAN v. PALO.
• Court: New Jersey Supreme Court

41 A. 364

62 N.J.L. 30

REGAN

v. PALO.

Supreme Court of New Jersey.

Oct. 18, 1898.

(Syllabus by the Court.)

Error to circuit court, Essex county; Child, Judge.

Action by Dominico Palo against Thomas J. Regan to recover damages for personal injuries. Plaintiff had judgment, and defendant brings error. Reversed.

Argued February term, 1898, before LIPPINGOTT, GUMMERE, and LUDLOW, JJ.

Depue & Parker, for plaintiff in error.

Walter J. Knight, for defendant in error.

LIPPINCOTT, J. In this case Dominico Palo, the defendant in error, the plaintiff below, recovered a judgment in the Essex circuit court against Thomas J. Regan, the plaintiff in error, the defendant below. Upon this judgment a writ of error was sued out for a review in this court. In the trial court motion was made for nonsuit, and for the direction by the court at the close of the evidence on both sides of a verdict for the defendant. Both motions were refused, and errors have been assigned in respect to the rulings of the trial court upon these motions. As the close of the case of the plaintiff below the evidence showed that he was the servant of the defendant below engaged in excavating a deep sewer trench in Jersey street in the town of Harrison, when one side of the excavation caved, and buried the plaintiff, and injured him. He had been engaged to work and was working for the defendant on the day preceding the injury. The work of excavating the sewer trench had proceeded to a considerable extent before the accident, and a portion of the sewer had been constructed therein, and the work was being continued. The excavation was being made ahead of the portions of the trench where the work of constructing the sewer with brick masonry was being carried on by other workmen. The general depth of the excavation was, when completed for the construction of the sewer, about 15 feet. On the day of the accident, or the day preceding, the plaintiff, with other workmen, began the excavation of a new section or portion of this trench. In doing this they commenced to dig at the surface, and had excavated to about the depth of 10 feet, when one side caved in. This section was from 45 to 50 feet in length. Along this line no bracing or sheathing had been placed to protect the sides of the excavation from caving. The evidence shows that on this work where this excavation was going on no shoring or bracing had been placed. On other portions of the work, after it had been excavated to certain depths, certain bracing had been put in, principally to protect the workmen who were engaged in the construction of the brick sewer in the bottom of the excavation from the caving or falling of the sides thereof. The plaintiff was about 43 years old, and, so far as the evidence shows, or so far as any contention was made in this behalf, it does not appear that he was one inexperienced in or ignorant of the character of the work in which he was engaged. No claim for recovery was made on the ground that because of such reasons he was entitled to any instruction in relation to the dangers of the employment, or needed any warning in respect thereto. He testifies himself that he noticed the character of the soil through which the excavation was being made; that at the top, and for a little distance beneath the surface, it was hard earth; this continued half way down the excavation; below this was a gravel formation, and still lower down it was composed of quicksand. He observed that on the portion where the sewer pipes were being laid by other workmen the sides were shored up with planks. These facts conclusively appear from the evidence of the plaintiff and the evidence of other witnesses in his behalf. The street was 36 feet wide from curb to curb, and this sewer excavation was being made in the middle of the street. There is other evidence showing that to some extent the street was a fllled in street, and it was clearly apparent that the earth in some parts through which this section of the excavation was being made was quite soft in its nature. The evidence is quite conclusive that, without shoring or bracing, the work was very dangerous. The evidence of the superintendent of the construction, a civil engineer, shows that it could be excavated only to about the depth of 10 feet safely without bracing, and that the character of the soil and earth through which the excavation was being made was such as to render the work obviously dangerous, unless protected by bracing the sides of the trench. This was obvious to any one working in...