Del Sejnore v. Hallinan

• Decision Date: 08 June 1897
• Citation: 153 N.Y. 274,47 N.E. 308
• Parties: DEL SEJNORE v. HALLINAN et al.
• Court: New York Court of Appeals Court of Appeals

153 N.Y. 274

47 N.E. 308

DEL SEJNORE

v.HALLINAN et al.

Court of Appeals of New York.

June 8, 1897.

Appeal from supreme court, general term, Third department.

Action by Concezio Del Sejnore, as administrator of Frank Angelo, against James A. Hallinan and others. From a judgment of the general term (36 N. Y. Supp. 1124) affirming a judgment for plaintiff, defendants appeal. Reversed.

Edward W. Douglass, for appellants.

Alonzo P. Strong and Louis M. King, for respondent.

HAIGHT, J.

This action was brought to recover damages for injuries resulting in the death of the plaintiff's intestate, alleged to have been sustained through the negligence of the defendants. The defendants, as contractors, were engaged in putting in a system of waterworks for the village of Ft. Edward, under the direction and supervision of an engineer employed by the village. The work comprised the building of a reservoir, and the laying of pipes for the distribution of water through the village. On the 27th day of June, 1893, the plaintiff's intestate, with others, was engaged in excavating a trench through East street for the purpose of laying a water pipe in that street. The work was conducted under the personal supervision of the defendant Fenton, who, in company with the engineer of the village, was present, observing the manner in which the work was being done. The trench was 5 1/2 feet in depth, 30 inches wide at the top, and 20 inches at the bottom. The soil through which the trench had been dug was of dry, sandy loam. The surface of the street was composed of a layer of furnace cinders, iron slag, and scoriae, the refuse from a furnace which had been spread upon the street from time to time, and which, by the action of time, the elements, and travel, had combined into a hard, tenacious, solid mass. This layer, upon the surface, was from 18 inches to 2 feet in thickness, and was so hard and tenacious as to necessitate the use of picks, steel wedges, and sledges in order to cut the trench through the incrustation. Between 10 and 11 o'clock in the forenoon of that day, a piece of the incrustation some 30 or 35 feet in length, varying from 30 inches to 10 inches in width, tipped over into the trench onto the plaintiff's intestate and another person who were at work therein, killing them, and causing the damages for which this action was brought.

It appears that two years before a sewer had been constructed in the street between the water trench and the curb. The evidence is somewhat conflicting as to the distance of the sewer from the water trench. There was evidence tending to show that the two trenches were not more than 30 inches or 3 feet apart, while other evidence made the distance much greater. It appeared that there were several...