van Steenburgh v. Thornton

• Decision Date: 19 November 1895
• Citation: 58 N.J.L. 160,33 A. 380
• Parties: VAN STEENBURGH et al. v. THORNTON.
• Court: New Jersey Supreme Court

33 A. 380

58 N.J.L. 160

VAN STEENBURGH et al.

v. THORNTON.

Court of Errors and Appeals of New Jersey.

Nov. 19, 1895.

(Syllabus by the Court)

Error to circuit court, Hudson county; before Justice Lippincott.

Action by Rose Thornton, administratrix of Michael Thornton against William Van Steenburgh and others. Judgment for plaintiff, and defendants bring error. Affirmed.

Warren Dixon and Samuel Kalisch, for plaintiffs in error.

Thos. J. Lintott for defendant in error.

VAN SYCKEL, J. Michael Thornton, the plaintiff's intestate, was the servant of the defendants, engaged in digging for them in a sewer which they were constructing for the township of Kearney, when one side of the sewer trench caved in upon him, and crushed him to death. The sewer trench was about 11 feet deep, and the sides were not braced. A few years prior to this accident, a trench had been opened, and a water pipe laid in this street, buried 4 or 5 feet under ground. The sewer trench was parallel with the water pipe and about 3 feet distant from it. The earth excavated from the sewer trench was piled up on the side next to the water pipe, and it caved in on that side. The writ of error in this case is prosecuted to review the judgment for damages recovered by the plaintiff on the trial below. The error relied on for a reversal is that the trial judge refused to nonsuit or direct a verdict for the defendants.

The trial court correctly charged the law to he that the duty of the defendants, as employers of the deceased, as their servant, was to exercise reasonable care to provide a safe place for the deceased to work in, and to furnish and adopt such means and appliances for the work to be performed by the deceased that he might be insured reasonable safety and protection in his work, subject to the further rule of law that the deceased took upon himself, as an employs or servant of the defendants, all the risks of danger incident to the employment, and which were obvious, or could have been perceived by him by the exercise of his senses and the use of ordinary care and circumspection. Whether the employer was guilty of negligence in not using reasonable care to keep the ditch in a safe condition was a question for the jury, depending upon various facts which were in dispute in the case. The care which the employer was bound to use in such a case he could give through another only at his own risk. He attempted to perform this duty by a boss employed by him, and put in charge of...