Hatch, J. The action is to recover damages for the negligent construction of a sewer, whereby plaintiff was injured. The particular defect relied upon to constitute negligence and create liability is the failure to provide a safe and secure place for the plaintiff to prosecute his work. This failure is claimed to consist in negligently omitting to secure the sides of the trench with sufficient braces, whereby some of the soil became loosened, fell out of its place, and, striking plaintiff, broke his leg.
The general rule of law is that a master is bound, in the first instance, to furnish for his servant a reasonably safe and secure place for the prosecution of his labor. Has that duty been discharged in this case? The opening of the trench and supporting the same was prosecuted by men engaged in different brandies of the work, but all tending to a common end.
Some dug out the earth, and filled the buckets; some placed the ranges, braces, and sheathing to support the sides as the earth was removed; and, finally, the plaintiff dumped the brick and mortar in the completed trench, while the brick-layers built up the sewer which the trench was to contain. The negligence of defendants, if there be any, consists in the failure to sufficiently brace the sides of the trench at the place where the dirt fell out.
The duty of protecting the sides of the trench rested upon one Forge, who was foreman of the “bracing gang.” The proof showed, indeed it is not contended against, that Forge was a skillful person, acquainted with his duties, and in all respects competent to perform them. Thus the master' •discharged the obligation resting upon him of furnishing a competent co-servant for this branch of the work. Hofnagle v. Railroad Co., 55 N. Y. 608.
It also appears without dispute that there was furnished an abundance of material, braces, ranges, and sheathing, which, if used, would have properly protected the sides of the trench. The master thus discharged this obligation. Ford v. Railroad Co., (N. Y. App.) 22 N. E. Rep. 946.
The cause of the accident, therefore, does not rest upon any failure of defendants to provide a safe place for plaintiff to perform his labor; on the contrary, it is the result of a failure of competent servants to make use. of proper materials, furnished by defendant, to make the trench safe. But this is the negligence, not of defendants, but of the co-servants, and for that defendants are not liable.
Hogan v. Smith, 125 N. Y. 774, 26 N. E. Rep. 742; Loughlin v. State, 105 N. Y. 159, 11 N. E. Rep. 371; Cullen v. Norton, 126 N. Y. 1, 26 N. E. Rep. 905. It is suggested, by the learned chief judge, that one of the defendants was actively engaged in overseeing the work as it progressed, and consequently he was personally chargeable with knowledge of the condition, and was bound to know of the defect.
The testimony is to the effect that he appointed Forge foreman of the bracing, and furnished necessary materials to be used for that purpose; that he passed over the sewer to see that the work was properly •done. I am of opinion that this does not change the result, for when he had furnished everything necessary to secure safety, and given directions how the work should be done, he had discharged his duty, and the omission was the failure of the servants to discharge the duty resting upon them.
Zeigler v. Day, 123 Mass. 152; Floyd v. Sugden, 134 Mass. 563; Mining Co. v. Kitts, 816 42 Mich. 34, 3 N. W. Rep. 240. I have found no case going so far as to hold that a master, who is generally overseeing the work, and who has furnished competent servants and sufficiency of material, and given necessary instructions, is bound, at his peril, to see that the work is properly done and his instructions followed out. It is far from being conclusively shown how the accident occurred.
It is nearly, if nut quite, as strong, that the dirt was loosened by the necessary construction of the brick-work in the trench, and the consequent disturbance of the sheathing boards, as that it happened from lack of braces. Perhaps there was enough upon this point to submit to the jury. But, upon grounds already indicated, lam of opinion that the judgment and order should be reversed, and a new trial ordered; costs to abide the event.
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