#### Felixa Janiszewski, as Administratrix, etc., of Anton Janiszewski, Deceased, Respondent, *v.*William H. Fitzpatrick, Appellant.

Second Department,

May 16, 1913.

Master and servant — negligence — death of workman by fall of gravel pile — Employers’ Liability Act—defects in the ways, etc.— erroneous charge.

Where in an action to recover for the death of a workman it appeared that when he and his fellow-servants were at work at the base of a pile of gravel or stone, with an overhang of from two to three feet, shoveling gravel therefrom, a part of the pile fell upon the intestate and killed him, it was error for the court to charge that the defendant’s liability rested, if at all, on the Employers’ Liability Act, and to submit to the jury over the defendant’s objection the question of defects in the ways, works, machinery or plant.

Thomas, J., dissented.

Appeal by the defendant, William H. Fitzpatrick, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 28th day of January, 1913, upon the verdict of a jury, for $2,500, and also from an order enteréd in said clerk’s office on the same day denying the defendant’s motion for a new trial ma.de upon the minutes.

*William Rasquin, Jr.,*for the appellant.

*Alvin C. Cass,*for the respondent.

Jenks, P. J.:

As the verdict for the plaintiff upon the question of the master’s liability was general, it may have rested exclusively upon the first question of such liability submitted to the jury. If that question was submitted erroneously, the plaintiff must show that the error did not and could not have affected the verdict *(Greene*v. *White,*37 N. Y. 405), but that seems to be an impossible task.

The court charged the jury that the defendant’s liability rested, if at all, upon the Employers’ Liability Act (Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. *20014, as amd. by Laws of 1910, chap. 352), and submitted as the first question defects in the ways, works, machinery or plant and as the second question the negligence of superintendence. I think that the defendant’s specific exception to the submission of the first question was well taken and is fatal to the judgment. The defendant was a contractor. In connection with his business he used an open lot, yard or space where there was a pile of gravel, screenings or crushed stone, about 100 feet in length, 25 or 30 feet in width and 8 feet high. There was an overhang of from two to three feet, and there is evidence that the pile was frozen. When the intestate and four or five of his fellow-servants were at work at the base of the pile, shoveling gravel therefrom into a truck, a part of the pile tumbled down upon the plaintiff’s intestáte and killed him. The mass that fell upon him and about him was estimated at about two truck loads. In the absence of all proof to the contrary such a subsidence would seem to be the natural consequence of removing the support afforded by the gravel at the base of this pile. The casualty happened on Monday. Plaintiff’s witness, Skoroszew. ski, saw this overhang when he passed by that pile on the Saturday previous. He testifies that the appearance of the pile on that Saturday and on that Monday at 7:45 A. M. had not changed, and he says, speaking of that appearance on Saturday: *“*The work had been done. The pile was made.” I find no other testimony that bears upon this subject. We may concede that the pile had been made on Saturday, and that as it had been left on that day it stood on Monday at 1:45 a. m., but this concession does not affect the possibility or the probability that the work done on Monday by the intestate and his companions of shoveling away the gravel from the base changed the character of the pile and its stability, and by removing the support caused the top to fall in. Skoroszewski himself, when he first observed the pile on Monday, saw the five or six people at work at the bottom thereof. It does not appear how long they had been on this work, but certainly such a force would make material inroads upon such a pile in a very brief time. I think, then, that there was not proof sufficient to take this case from the purview of the doctrine of *Citrone*v. *O’Rourke Engi*
      *201
      *neering Const. Co.*(188 N. Y. 339), *Mullin*v. *Genesee County El. L., P. & G. Co.*(202 id. 275), *Logerto*v. *Central Building Co.*(123 App. Div. 840) and like cases. In *Citrone*v. *O’Rourke Engineering Const. Co. (supra)*it is said by Willard Bartlett, J.: “As was said by Mr. Justice Cullen, in *O’Connell*v. *Clark*(22 App. Div. 466), £ the principle of a safe place does not apply where the prosecution of the work itself makes the place and creates its danger,’ and by the same judge in *Stourbridge*v. *Brooklyn City R. R. Co.*(9 App. Div. 129): £ The rule that the master must provide a safe place for work only applies where the work and the place are not connected; where the work is not in the construction of the place as in the case of a mill, a factory, mine, ship, well, etc.’” In *Mullin*v. *Genesee County El. L., P. & G. Co. (supra),*it is said by Werner, J.: “The reason for this exception to the general rule is that it would be manifestly absurd to hold a master to the duty of providing a safe place when the very work in which the servant is engaged makes it unsafe.”

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

Carr, Rich and Stapleton, JJ., concurred; Thomas, J., dissented.

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