#### George Dzubak, Appellant, *v.*West Side Foundry Company, Respondent.

Third Department,

July 1, 1914.

Master and servant — negligence — injury to moulder —fall caused hy difference in floor levels — evidence justifying recovery.

The plaintiff, a moulder, while engaged in carrying a ladle of moulten inetal through a passageway in the defendant’s foundry, tripped over an obstacle which was covered by loose sand, with the result that he fell and his leg was burned. The passageway led through a wall and *122there was a difference of about one inch in the floor levels of the adjoining rooms, and the defendant had for some months permitted the difference in level to be filled up with loose sand, instead of providing a solid pathway. The action was brought at common law and under the Employers’ Liability Act.

*Held,*that the jury were justified in finding the defendant negligent in failing to furnish a reasonably safe place in which to work, and that the plaintiff was free from contributory negligence.

Appeal by the plaintiff, George Dzubak, from, an order of the Supreme Court, made at the Albany Trial Term and entered in the office of the clerk of the county of Albany on the 7th day of February, 1914, setting aside the verdict of a jury in plaintiff’s favor for $4,550, and granting the defendant’s motion for a new trial.

*John F. Murray, William H. Murray*and *Andrew J. Nellis,*for the appellant.

*Charles Irving Oliver,*for the respondent.

Lyon, J.:

The facts are practically conceded, the defendant resting its case at the close of the plaintiff’s evidence with the statement, as indicated by the charge, that the calling of witnesses on behalf of the defense would be but a duplication of the testimony. The verdict was for the plaintiff, and the case comes before this court upon appeal from an order setting aside the verdict as against the evidence and as excessive, and granting a new trial.

The action was brought under both the common law and the Employers’ Liability Act (Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14, as amd. by Laws of 1910, chap. 352) to recover the damages sustained by the plaintiff, who was a moulder in defendant’s foundry, by the severe burning of his foot and leg from the overturning of a ladle of moulten iron, which he was carrying from the cupola in the old foundry, where the iron had been melted, to the bench in the new foundry upon which were the moulds which he had made to receive the hot metal. Separating the two foundries was a brick wall through which a passageway for the use of the moulders in carrying the moulten iron had *123been made by removing a window in the wall, and taking out brick beneath the sill down to the level of the floor of the new foundry, which floor was about one-half the thickness of a brick, or a trifle more than an inch, higher than the floor of the old foundry. At each side of the passageway thus made was located the bench of a moulder, and in order to avoid removing the moulder’s bench upon the west side of the opening, this dividing wall instead of being cut perpendicularly, as was the case with the east side, was cut obliquely from the base of the window to the floor. There was thus created a narrow passageway ten feet in height and five feet in width down to a'point about four feet from the floor, from which point the opening was narrowed by the oblique cutting to the width of between two and three feet at the floor. It was customary for the moulders to complete their moulds and to commence making their castings at about three o’clock in the afternoon, prior to which time the moulders occupying the benches on the sides of this passageway, having used the space between their benches at the entrance to the passageway for storing sand used in making their moulds, would level off any sand remaining in order to make practically uniform the grade from the floor of the old foundry to the floor of the new foundry; but at times the quantity of sand used in the grading was somewhat less than at other times. A number of the moulders, including the plaintiff, having benches in the new foundry, forming in line would pass with their empty ladles in hand from the new foundry through this passageway into the old foundry, and with filled ladles return to fill their moulds. Upon the occasion of receiving the injuries complained of, which was about half-past four o’clock in the afternoon of December 4, 1912, the plaintiff was returning through the old foundry, which was lighted by a large lamp, carrying a filled ladle, the bowl and handle of which were fifty-four inches long, holding the same out from his side, and as he testifies was moving somewhat rapidly, as was necessary in order that he might reach his moulds before the metal had cooled, and was about to enter the passageway through the wall, being obliged to watch the ladle as he neared the passageway, when his foot struck a solid substance on the ground which he thinks was a *124brick in the old wall which did not "yield, causing him to stumble and fall, and the melted iron to be poured upon his right leg and foot burning him most severely. It is the plaintiff’s contention that this passageway and the entrance thereto, graded from the floor of the old to the floor of the new foundry with moulding sand, did not constitute a reasonably solid and safe way, and having been continued for at least two and one-half months prior to the time the plaintiff was injured, might properly be presumed to have been constructed and used with the knowledge of the defendant.

The defendant was bound to furnish the plaintiff a reasonably safe place in which to work, and the jury undoubtedly found that using easily displaced moulding sand, instead of constructing a substantial pathway, was not the exercise of reasonable care upon the part of the defendant and was the cause of the plaintiff’s falling. The question of contributory negligence was under the evidence fairly for -the consideration of the jury, and we cannot say in view of the serious and distressing nature of plaintiff’s injuries that the damages awarded were excessive.

The material facts being practically conceded, as before stated, no occasion exists for a retrial of the action. The learned trial court in his memorandum accompanying the granting of the order appealed from held that the question as to. the liability of the defendant was properly submitted to the jury and declined to dismiss the complaint, but based the granting of his order upon the ground that the verdict seemed to be against the weight of evidence and was excessive in amount.

The order setting aside the verdict and granting a new trial should be reversed, with costs to appellant, and the verdict reinstated.

All concurred.

Order reversed and verdict restored, with costs of this appeal to the appellant.