#### DAVIS v. NEW YORK, L. E. & W. R. CO.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

Master and Servant—Safe Place for Servant to Work.

While plaintiff’s intestate was shoveling coal in defendant’s bin, the partition gave way, under the pressure of the coal in an adjoining bin, in which the coal was piled about 40 feet high, and intestate was killed. Before the accident, while the bin in which plaintiff was killed was empty, an explosion of dynamite in the neighborhood had caused the walls of the bin to bulge, and braces were placed at one point. *Held,*that it was a question for the jury whether sufficient precautions were taken to stréngthen the bins.

Appeal from circuit court, Rockland county.

Action by Maria L. Davis, as administratrix • of Ira L. Davis, deceased, against the New York, Lake Erie & Western Railroad Company, to recover damages for alleged negligence of defendant in causing the death of plaintiff’s intestate. Judgment was entered on a verdict for $5,000 in favor of plaintiff, and defendant appeals. Affirmed.

For former report, see 23 N. Y. Supp. 359.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Lewis E. Carr, for appellant.

Frank Comesky, for respondent.

*820DYKMAN, J.

This is an action for the recovery of damages for causing the death of the plaintiff’s intestate, who was her son. The deceased was in the employ of the defendant, as a coal shoveler, at Piermont, in Rockland county. The defendant was in possession of a long dock, extending into the Hudson river, which was used for storing coal in very large quantities. There is a railroad track running the entire length of the dock, and there is a series of bins on each side of the track. For the purpose of separating the different grades of coal, the bins are divided by partitions which run crosswise of the dock. In the summer of 1891 one of those bins was filled with stove coal to the top, which was about 12 feet high, and then the coal was piled, on a slant of about 45 degrees,' to a height of 35 or 40 feet. The adjoining bin was empty. About that time there was an explosion of dynamite upon the Hudson River Railroad, about opposite the dock, which shook the bins, and caused the boxes or cribs forming this bin to bulge out. Braces were placed on the north side of the bin at that time. Thereafter, the vacant bin was partly filled with chestnut coal, and so remained until the latter part of November, 1891, when the defendant commenced to remove the coal therefrom. For that purpose a portable railroad track was laid from the bin to the top of a trestle which extended along the south of it. The coal was loaded into a small car, drawn up the track to the top of the trestle, and then dumped into a chute which conveyed it into a vessel lying in the river. On the 27th day of November, 1891, the plaintiff’s intestate and1 some others were engaged in shoveling coal into one of those cars. They were but a few feet from the partition, when a portion of it suddenly gave way, and fell upon him, and killed him. The jury rendered a verdict of $5,000 in favor of the plaintiff, and from the judgment entered upon that verdict, and from the order denying a motion for a new trial upon the minutes of the court, the defendant has appealed.

There is no claim of any contributory negligence on the part of the deceased, and the sole question involved in the appeal is whether the testimony showed such a want of care on the part of the servants of the company as will sustain the verdict. There was some testimony to show that the bin was not constructed originally by the defendant; but that question is not material, inasmuch as the defendant adopted it, and used it, and was therefore under obligation to use ordinary care and caution, at least, in maintaining it in a safe condition, so far as its servants were concerned. If, therefore, the structure became unsafe and dangerous by reason pf insufficient inspection and reparation, that would be carelessness which might impose liability upon the defendant for an injury resulting to one of its servants from that cause. We think the evidence convicts the defendant of negligence in that regard. The structure was weakened by the concussion caused by the explosion across the river, and that fact was known to the foreman of the defendant who braced the bin where it bulged. Whether more bracing was not required was a question which the jury might well *821decide against the defendant. The foreman was unable to say that he even examined the structure on the south of the place where he placed the braces. Again, it was a very serious question, for the jury to determine, whether the manner of removal of the coal adopted by the foreman was not erroneous and careless. The great bulk of the coal was removed from one side of the partition, while there was an enormous bank of coal, 35 or 40 feet high, on the other side, pushing against the partition, with no counteracting pressure from the opposite side. The partition was thus left to sustain, unaided, the very great weight which came against it. It requires no argument to show that such a method of proceeding submitted the shovelers to an unnecessary danger. While the cribs were full, they supported each other, and ordinary care and caution would not justify the destruction of such support, beyond what was actually necessary. The case of Rigdon v. Lumber Co. (Sup.) 13 N. Y. Supp. 871, affirmed in 131 N. Y. 668, 30 N. E. 867, is an authority in favor of the plaintiff in this action. The foregoing views are based upon the rule of law which requires a master to be careful to provide a safe place for his servants while in the discharge of their duties, and authorizes the servants to assume that their masters have performed their duties in that regard. Here we have proof of an occurrence which would not happen in the ordinary course of events, and sufficient to raise a presumption of negligence; and the defendant failed to sustain the burden thus cast upon it, to relieve itself from such presumption. There was an exception to the charge of the judge, which presents no error. The judgment and order should be affirmed, with costs.