Reilly v. Troy Brick Co.
| Decision Date | 06 April 1906 |
| Parties | REILLY v. TROY BRICK CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Third Department.
Action by Celia Reilly, as administratrix of David Reilly, against the Troy Brick Company. From a judgment of the Appellate Division (95 N. Y. Supp. 1156,109 App. Div. 920), affirming a judgment for defendant, plaintiff appeals. Reversed.
The action was brought to recover damages for the alleged negligent killing of the plaintiff's intestate, a laborer in the employ of the defendant. The defendant is engaged in the manufacture of brick within, or very near, the northerly boundary of the city of Troy. The accident which caused intestate's death happened at about 2 or 3 o'clock in the afternoon of June 4, 1904. At that time he was engaged, in company with several other laborers, in digging clay at the foot of a clay bank in the defendant's brickyard. A portion of the bank gave way, burying and killing the intestate and two other laborers. The action is brought under the provisions of Employers' Liability Act, Laws 1902, p. 1748, c. 600. The jury rendered a verdict in favor of the plaintiff for $3,000. The trial court subsequently set aside the verdict and rendered judgment dismissing the complaint. The Appellate Division affirmed the judgment thus entered, and allowed an appeal to this court.
George B. Wellington, for appellant.
Lewis E. Griffith, for respondent.
The only question which we deem it necessary to consider upon this appeal is whether there was any evidence of negligence on the part of the defendant which, according to any reasonable view, justified the verdict of the jury. If there was, the learned trial court erred in setting the verdict aside, and the judgment dismissing the complaint must be reversed. In considering the question thus presented, all contested facts must be assumed to have been found in favor of the plaintiff, and she is entitled to the most favorable inferences deducible from the evidence. Higgins v. Eagleton, 155 N. Y. 466, 50 N. E. 287;Place v. N. Y. C. & H. R. R. R. Co., 167 N. Y. 345, 347,60 N. E. 632;Sundheimer v. City of N. Y., 176 N. Y. 495, 68 N. E. 867;Koehler v. N. Y. Steam Co., 183 N. Y. 1, 75 N. E. 538.
David Reilly, the intestate, had been in the employ of the defendant since its incorporation, several years before the accident, and had also worked for the former owners of the property, covering a period of seven or eight years prior to that time. He was a common laborer working under the orders of either a bank boss or superintendent. The evidence discloses that in November, 1903, about seven months previous to the accident, a slide of clay from the defendant's bank had occurred at the same point where the intestate lost his life. The clay which was precipitated by the former slide lay along the floor of the yard extending outwardly from the foot of the bank. From that time to the day of the accident the clay needed by the defendant for the making of brick was taken from the deposit thus formed. The process of removing this fallen clay had been going on from November, 1903, until the day of the accident, when this source of supply had become very nearly exhausted, and the intestate, with his fellow laborers, was working within 15 or 20 feet from the foot of the bank. The bank itself was from 65 to 70 feet high, with a slope which the jury might have found was only 20 feet from an imaginary vertical line starting at the foot of the bank and extending to the top. The portion of the bank that slid or caved was about 100 feet in width. A stratum of sand formed the floor, as it was called, upon which the bank rested, and in removing the old clay of the former slide the workmen left about four feet on the sand; but in some places they dug down so that the sand underneath was visible. A former superintendent of the defendant, testifying in behalf of the plaintiff, described how the slide of 1903 occurred,...
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Scharff v. Jackson
...no other way [than the way suggested by the plaintiff], that I can perceive, to account for the accident.’ In the case of Reilly v. Troy Brick Co., 184 N. Y. 399, N. E. 385, also relied upon to sustain the verdict, a question arose as to defendant's negligence, but there was no dispute as t......