#### Patrick Ward, Appellant, v. Edison Electric Illuminating Company of Brooklyn, Respondent.

Second Department,

January 24, 1908.

Master and servant — negligence —injury by collapse of concrete structure — when negligence and contributory negligence for jury — assumption of risk—work not creating place of danger.

When, in an action to recover for personal injuries received by a common laborer while lowering a manhole constructed, of" concrete into an excavation, which was effected by gradually digging the earth from beneath the structure, the ■ plaintiff gives evidence tending- to show that it was not safe to lower such structure without bracing it within and without, the negligence of the master in failing to do so is a question for the jury.

So, too, the plaintiff’s contributory negligence is for the jury When it appears that he was exercising due care while digging the earth from beneath the structure as directed, and was guilty of no act of carelessness or negligence which contributed to the injury.

When it is shown that the plaintiff so injured was a common laborer,, illiterate and required to work in the place and manner directed, the assumption of risk is a question for the j ury.

As the walls of the excavation at which the plaintiff ivas at work did not fall, hut the injury was caused by the collapse of the concrete structure, the case *23is not within the rule that the principle of a safe place to work does not apply where the prosecution of the work itself makes the place and- creates its danger.

The fact that a week or more' prior to the accident the plaintiff assisted in-building the concrete structure by' shoveling gravel does not prevent a recovery. ,

Appeal by the plaintiff, Patrick Ward, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the.county of Kings on the 30th day of-March, 1907, upon the dismissal of the eopiplaint by direction of the court at the close of the plaintiff’s case upon a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 14th day of March, 1907, as modified by an order entered on the 26th day of March, 1907, directing the1 dismissal of the complaint.

*.Rufus O.*Gatlin, for the appellant.

*Frederick Hulse,*for the respondent.

Hóóker, J.:

The plaintiff was nonsuited in this action of master against servant. The defendant had built a so-called “manhole” of concrete, rectangular in shape, about eight feet in length by six feet in. width and several feet, in depth.. Because of .the presence of water a short distance below the surface of the- ground, the manhole could not be constructed in the ordinary way. Therefore, a hole was dug in. the ground, at a point where the manhole was designed to be •located, down as far as the water level and then the hole was filled •with sand. Upon this sand, the bottom and walls of the manhole were built. The manhole was lowered by digging a trench around all its sides and then, by shovel, removing the sand from under the completed structure. After the concrete, of which the manhole was constructed, had been allowed to set for. some time, the boards and braces were removed and the sinking of the manhole into place undertaken. While this process was being performed, no supports, either interior or exterior, were placed upon the structure. When it had been lowered several feet, the plaintiff, who was engaged in shoveling sand from beneath it to allow it to go still further down, was injured because the manhole broke apart and one section fell over against him as he was working in the trench. The case should have been submitted to the jury.

*24Upon the question of the defendant’s negligence, evidence on the part of the plaintiff was received which tended to show that it was not safe or proper to lower this structure without its being first braced interiorly and exteriorly. This precaution had not been observed by the defendant and it, therefore, became a question of fact for the jury’s determination whether the defendant had discharged the duty of ordinary care for the safety of its employees.

Upon the question of the plaintiff’s contributory negligence the case was also, for the jury ; it appeared that the plaintiff was exercising due care and performing his work exactly in the way that he had been ordered to do, and he was certainly guilty of -no- act of carelessness or negligence which contributed to the injury.

Upon the question of the assumption of the risk, I think the case should also have been submitted to the jury. In *Logerto*v. *Central Building co.,*123 App. Div. 844 (decided herewith), I said in my dissenting opinion : *“*Obvious- risk is such as is apparent, and it must be apparent to the person, who is claimed to have assumed the risk. Danger from lieat generated upon the union of sulphuric acid and water might be perfectly apparent to one familiar with the inside of a chemical laboratory ; danger of the collapse from the overloading of a mechanical structure might be perfectly apparent to a mechanical engineer; and danger from the misuse of. an electric current might be entirely apparent to an expert electrician ; but these and similar dangers are hidden mysteries to many,, and vaguely understood by others. On the other hand, it may. well be that generally the danger from a revolving buzz saw is apparent to all who see it in operation. There is a sliding scale of character of dangers, and another of- the ability of those who' are in danger to understand them. It is fitting, therefore, that it should be left, as provided in the statute,* to a jury’s judgment, whether the danger is obvious.”' . There a bank of earth was being removed by the plan of imdermining it and prying' off the overhanging portion. The plaintiff was twenty-four years old ahd liad never been engaged in any other work than that of common laborer ; he was unable to speak English, and testified through an interpreter, and it seemed to me that tlie question whether,..under all the circumstances, he understood tiie danger, was for the' jury’s- determination.' Here the *25plaintiff was also a common laborer whose work, in the main, was with pick and .shovel; a reading of his evidence shows that he was, in a measure at least, illiterate, and it appeared that his duty was to do work here and there wherever he was instructed, and in the way which he was told. Whether he understood the danger of the collapse of the manhole, and hence whether the risk was apparent to him, was for the jury.

The respondent cites *Citrone*v. *O'Rourke Engineering Const. Co.*(188 N. Y. 339) as maintaining the proposition that “‘the principle of a safe place does not apply where the prosecution of the work itself makes the place and creates its danger.’ ” In this case the wall of the ditch did not fall; it was the structure, which the jury would have been justified in finding was improperly braced, which caused the accident. The duty of bracing, if the jury should find such duty existed, was that of the master, and the mere act of the plaintiff in digging sand from under it did not lessen the master’s obligation.

It may not be out of place to observe that the jury would not have been justified in attaching any importance to the crack which appeared in the structure. Eor under the state of the proof there was no evidence that the structure broke at the crack or that the presence of the crack had to do with the collapse.

The fact that a week or two previous to the accident and while the manhole was being built upon the surface of the ground, the. plaintiff shoveled some gravel in connection with its building does not prevent his recovery. The duty the master owed the plaintiff to exercise reasonable care for his safety in properly bracing the manhole was not abridged or cut down by the mere fact that while it wak being built and wholly independent of its subsequent strengthening for lowering, the plaintiff merely shoveled gravel.

■ The judgment must be reversed and a new trial granted, costs to abide the event.

Jenks, G-atnor and Bien, JJ., concurred ; TIirsghberg, P. J., not voting.

Judgment and order reversed and new trial granted, costs to abide the event.

*

 See Laws of 1903, chap. 600, § 3.—[Rep.