#### Angelina Armenti, as Administratrix, etc., of Francesco Armenti, Deceased, Plaintiff, *v.*The Brooklyn Union Gas Company and Others, Defendants.

Second Department,

May 23, 1913.

Master and servant—negligence — death cf employee through caving in of sewer excavation — evidence—Labor Law, section 18, construed— “structure” — “stay” — questions raised on appeal from nonsuit—pleading statute.

In an action to recover for the death of plaintiff’s intestate, through the caving in of a sewer excavation in the process of construction by defendant contractors, by whom the intestate was employed, the complaint, among other allegations of the cause of the accident, alleged that said defendants failed to properly shore, support and secure the excavation and the ground contiguous thereto. At the close of plaintiff’s case the complaint was dismissed as to the defendant contractors, and exceptions ordered to be heard in the first instance by the Appellate Division.

Evidence examined, and *held,*that plaintiff’s exceptions must be sustained and a new trial granted;

That, although defendant’s liability under section 18 of the Labor Law was not presented on the trial, it was properly raised on appeal under the allegations of the complaint;

That said statute being a general one, it was not necessary to specially plead it;

That the sewer excavation, although located below the surface of the street, constitutes a “ structure” within the meaning of the statute, and that the sheathing, shoring and bracing of such structure are included within the terms of the statute and constitute a “ stay.”

The provisions of said statute are not to be limited to appliances furnished to an employee, with which he is to perform his labor, and may be applied to structures intended as was the sheathing, shoring and bracing in this case, to prepare the place where work is to be performed, and render it more safe.

Reargument of a motion by the plaintiff, Angelina Armenti, as administratrix, etc., for a new trial upon the case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the Kings County Trial Term in May, 1911.

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      *Thomas J. O’Neill [L. F. Fish*with him on the brief], for the plaintiff.

*Frank Verner Johnson [Amos H. Stephens*with him on the brief], for the defendants Rodgers and Hagerty.

Burr, J.

This action is brought to recover for the pecuniary injury resulting from the death of Francesco Armenti on the 20th of November, 1908, through the caving in of an excavation made through Gold street, in the borough of Brooklyn, for the purpose of constructing a sewer. Plaintiff’s intestate was in the employ of defendants Rodgers and Hagerty, who had a contract with the city of New York for such construction. The Brooklyn Union Gas Company and the Edison Electric Illuminating Company were originally joined with Rodgers & Hagerty as parties defendant. When the action was brought to trial the complaint was dismissed as to the gas company and the illuminating company on the pleadings and opening of counsel. The propriety of this ruling is acquiesced in. At the close of plaintiff’s case the complaint was dismissed as to the defendants Rodgers & Hagerty, and the exceptions were ordered to be heard in the first instance at the Appellate Division of this court. Under such cbcumstances plaintiff is entitled to the most favorable construction of the evidence.

The complaint alleged the service of a notice under the Employers’ Liability Act. When offered in evidence it was excluded as defective and insufficient. The notice is not made a part of this record, and the correctness of this ruling seems to be conceded. Defendant’s liability, if any, must, therefore, rest upon a breach of a master’s obligation to his servant, unaffected by that statute.

The causes for the accident, and the grounds of negligence set forth in the complaint as amplified by the bill of particulars, were various. The one finally relied upon was failure to properly shore, support and secure the sides of the excavation made for the construction of such sewer, and to maintain such shoring so that it should be safe and suitable. The questions presented, therefore, are two-fold: *first,*does the evidence permit a finding that the subsidence occurred because the shoring *278and bracing gave way, and if so, are the defendants liable therefor? The sewer was built of concrete, was nearly circular in form, about seventeen feet in diameter, and was laid at the bottom of an open trench about eighteen feet wide and about forty-five feet deep. On the day of the accident about one hundred and thirty-five feet of this trench was open. The sewer had been constructed in two sections, and the lower half or invert of the sewer at the bottom of the trench had been completed. This invert was at least seven feet in height from the bottom of the excavation, and extended the entire width thereof between the sheathing on either side. Defendants were about to place upon the top of the completed invert iron forms over which concrete was to he put to the thickness of two feet or more, making in connection with the previously constructed invert a completed tube, and while thus engaged the sides of a portion of this open cut caved in, and plaintiff’s intestate was caught in the mass of falling material and killed. After the occurrence earth, timber, gas mains, pipes, masonry, and even the paving and flagging which had been upon the surface of the street adjoining the excavation were mingled together at the bottom thereof, in such confusion that it would be at least difficult to draw any very satisfactory conclusion from what then appeared as to the manner of construction. There is evidence, however, most of which was given by four of the workmen employed in the construction of said sewer, from which a jury could have found the following facts: In preparing the excavation for the reception of this concrete structure, the sides thereof had been sheathed with planking about two inches in thickness. This sheathing was supported by “rangers” running longitudinally along the sides of the sheathing on the inner side thereof. These rangers consisted of planks from nine to twelve inches in width. Across the excavation and supporting these rangers were cross-braces horizontally placed. There is a slight variance in the testimony as to the distance which separated these cross-braces, but the greater weight of the more reliable testimony is that they were five feet apart, measured in a vertical line, and six or eight feet apart horizontally. It appeared that in order to make room for the iron forms which were to be *279placed upon the top of the completed invert it was necessary to remove a part of this cross-bracing, and there is no suggestion that the method adopted of building the lower half of the sewer and then placing upon that the iron forms to sustain the concrete for the construction of the upper half, and the removal of a portion of the cross-bracing in order to permit this to be done, was not a proper method of construction if carefully employed. Di Orescenti, • a fellow-workman of decedent, who, upon the morning when the casualty occurred, was engaged in filling in that portion of the excavation where the sewer had been completed, testified that on previous occasions it had been the custom to place forms about twenty-five or thirty feet long, removing the cross-bracing for that purpose. On this day, when the work was approaching completion, the space cleared for the forms was sixty feet in length. It appears that it was the duty of a gang, known as the carpenter’s gang, to construct the supports for the excavation, and to prepare for the placing of the iron forms when that became necessary. Decedent was a member of a gang known as the concrete gang, whose duty it was to prepare and lay the concrete when the forms had been put in place. Di Orescenti testified that on the morning in question the carpenter’s gang had taken away three lines of cross-braces, one over the other, for a distance of sixty feet, leaving only five or six of these cross-braces between the top of the excavation and the point where the lower cross-brace remained, instead of ten or eleven as had previously been employed. He also testified that he noticed that the timber which was the lowest of those not taken away started to break, and then the sheathing boards commenced to give in below, and that after the earth had fallen from down below, then the top came down, too. He testified that he heard a cracking sound about four or five minutes after the braces had been removed, and that none of the shoring planks fell until after the brace broke. Guerra, another fellow-workman of decedent, testified that three rows of these cross-braces, measured in a vertical line, had been taken away, leaving a space of fifteen feet measured from the bottom of the trench toward the top. Another witness, Heitmann, testified that he heard a rumble and cracking *280of timber, and then saw everything on both sides falling in the trench toward the center of the street. He adds, “a little after everything was falling towards the center, the open gas main started in to light up.” Ernest 0. Moore, called as an expert witness by plaintiff, who on the day after the accident examined that portion of the excavation immediately adjoining the place of the subsidence which had escaped destruction, also testified as to the construction there employed, and his testimony does not vary substantially from that given by the coemployees of decedent in the particulars above specified. He gave some additional testimony from which a jury might have found that the sheathing planks were of unequal length, varying from ten to fifteen feet, and that owing to the depth of the excavation it was necessary to employ three or more of these planks placed one on top of the other. The ends of these planks were referred to in the evidence as “butts,” and these ends were not spliced together. While it seems to have been the purpose to place one of these rangers across these butts or ends of the planks, owing to the unequal length thereof, at many places the butts were not covered by the rangers, in some instances being above and in some instances below these. In other words, the rangers did not couple the joints. Moore was asked the question, “Do you mean that the butts of these plank were somewhat like the teeth of a saw, some up and some down ? ” and he answered, “ That is the point exactly, they were not all on the same line.” There was also evidence that it was the custom when cross-braces were removed to permit the forward motion of the iron forms, to substitute for these a truss construction extending from the ranger or stringer formerly braced by the cross-brace to the next cross-brace above, and. that in this instance such construction was omitted and the shoring was nailed to the cross-braces remaining overhead by wire nails. There was also evidence that after the accident, while the paint upon some of the buildings facing upon the street was scorched, indicating the presence of heat and possible contact with flame, with two or three exceptions none of the glass in the windows of these houses was broken, and from this it is argued that no explosion could have taken place. The strength of this testi*281mony was in some instances affected by cross-examination, but in the absence of any contradiction or explanation, it was for a jury to determine whether the cause of the subsidence in question was the giving way of the shoring and bracing intended to support the sides of the trench. Assuming that a jury should find that this was the physical cause of the subsidence, what if anything more was plaintiff called upon to establish in order to make out a *prima facie*case of defendants’ liability ? If such liability is to be measured solely by common-law rules, plaintiff would have been obliged to proceed further and, having established the physical cause of the subsidence, also show some omission of duty or negligent act upon the part of decedent’s masters personally, or upon the part of those for whose acts or omissions they are responsible. We need not decide whether this requirement has been met, and whether the case is controlled by the principle laid down in the cases of which *Butler*v. *Townsend*(126 N. Y. 105) and *Kimmer*v. *Weber*(151 id. 417) are types, or by that exemplified in *Simone*v. *Kirh*(113 id. 1). In 1885 a statute was passed materially affecting the measure of a master’s liability with respect to the cases therein specified. (Laws of 1885, chap. 314, as amd. by Laws of 1891, chap. 214.) The provisions of this statute, with some changes and alterations therein, were embodied in the Labor Law of 1891 (Gen. Laws, chap. 32; Laws of 1891, chap. 415), and have been re-enacted in the present Labor Law (Oonsol. Laws, chap. 31; Laws of 1909, chap. 36). In 1908, when this accident happened, this statute contained among others this provision: “A person employing or directing another to perform labor of any kind in the erection, repairing altering or painting of a house, building or structure shall not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged.” (Id. § 18.) This statute “lays upon the master a positive prohibition, from the violation of which neither his own ignorance nor the carelessness of his servants will shield him.” *(Caddy*v. *Interborough Rapid Transit Co.,*
      *282195 N. Y. 415.) An affirmative and imperative duty is thereby imposed upon the master, regardless of his knowledge, and not dependent upon the affirmative evidence of negligence. Whenever a stay or other mechanical appliance is furnished to be used in erecting a structure, it must be safe, suitable and proper for the ordinary uses for which it is intended or the employer is liable. That this concrete sewer, although located beneath the surface of the street, is a structure seems to be settled by authority. *(Caddy*v. *Interborough Rapid Transit Co., supra; Madden*v. *Hughes,*104 App. Div. 101; *Stevens*v. *Stanton Construction Co.,*153 id. 82.) That this sheathing, shoring and bracing are included in the terms of this statute also seems reasonable. A stay generally is “that which holds or restrains” (Cent. Diet, title “stay”); “that which supports” (Standard Diet, id.); “that which serves as a prop,” (Webster Diet. id.). Specifically, as applied to building, it is “ a piece performing the office of a brace, to prevent the swerving or lateral deviation of the piece to which it is applied. ” (Cent. Diet, id.)

Defendant contends that the beneficent provisions of this statute are to be limited, however, to appliances furnished to an employee, with which he is to perform his labor, and not to structures intended, as was this sheathing, shoring and bracing, to prepare the place where work should be performed and render it more safe. We' deem this construction too narrow. The object of the statute was to procure a safer condition for workmen engaged in work more or less hazardous in character. “The statute must be given a fair and reasonable meaning which will neither extend it beyond nor withdraw it from its intended effect.” *(Gombert*v. *McKay,*201 N. Y. 27.) The thing which by the statute the master is forbidden to do is, *first,*to “furnish ” things specified which are “ unsafe, unsuitable or improper,” and *second,*to “erect” such things. The things specified must not alone be “ operated ” so as to give proper protection to the life and limb of a person employed or engaged in work, but must be ,£constructed” and “placed” to secure the same result.

Finally, it is urged upon us that the complaint is not so framed as to charge defendant with liability under this statute, *283and that in the trial court no attempt was made to invoke its provisions. The complaint is certainly very general, and almost every conceivable ground of liability is asserted therein. But among other allegations of the cause of the subsidence from which the death of plaintiff’s intestate resulted is “ that said defendants failed to properly shore, support and secure the excavation and the ground contiguous thereto.” This is sufficient to allow the evidence that this was the physical cause of the “ cave-in.” If when that fact is established, legal liability follows under the statute, the complaint cannot be successfully attacked for insufficiency, for the statute, being a general one, need not be pleaded. *(Haggblad*v. *Brooklyn Heights R. R. Co., 117*App. Div. 838.) Nor is it fatal that this point was not called to the attention of the trial court. It may be that when a case has been submitted to a jury upon a particular theory it is too late for a plaintiff, who has been unsuccessful upon the issue tendered, to inject into the case on appeal another distinct element adding to the liability of the defendant, and which he has never been called upon to meet *(Rager*v. *Delaware, L. & W. R. R. Co.,*64 App. Div. 134), but in the case of a nonsuit a different rule applies. “Every question is open to the plaintiff which can fairly be raised upon the record.” *(Clemence*v. *City of Auburn,*66 N. Y. 334; *Train*v. *Holland Purchase Ins. Co.,*62 id. 598; *Pratt*v. *D. H. M. F. Ins. Co.,*130 id. 206.)

We have previously considered cases arising out of the same casualty as that from which Armenti’s death resulted. In *Di Crescenti*v. *City of New York*(149 App. Div. 816), in which case we reversed a judgment of nonsuit against the same defendants, we did say that the rule of *res ipsa loquitur*did not apply to the extent that the mere happening of the subsidence, without any evidence as to the probable cause thereof, was, under the circumstances there disclosed, sufficient to impose upon defendants a *prima facie*liability, and we followed that rule in *Tengstrom*v. *Rodgers*(155 App. Div. 405). But we decided in the *Di Crescenti*case, as we do now, that if the ¿vidence was sufficient to require submission to the jury of the question whether the cause of the subsidence was defective shoring, a nonsuit was improper, although in that case the *284application of the Labor Law to the facts of the case was not considered.

It follows that the plaintiff’s exceptions must be sustained and a new trial be granted, costs to abide the event.

Jenks, P. J., Thomas, Carr and Stapleton, JJ., concurred.

Plaintiff’s exceptions sustained on reargument and new trial granted, costs to abide the event.