#### Haskins *v.*Stewart *et al.*

*(Supreme Court, General Term, Second Department*

July 18, 1890.)

Master and Servant—Ordinary Risks of Employment—Sewers.

A laborer was killed by the caving in of the sides of a sewer while he was at work thereon for the contractors. The cause of the accident was the bursting of a city water-pipe which was defective at the place of fracture, but the defect was not known to any one before the accident. The method of bracing the sides of the *834sewer was that generally used under similar conditions, and had been approved by the city engineer. *Held,*that the contractors were not liable, the accident not being one which they were bound to anticipate and guard against.

Appeal from Westchester county court.

Action by Mary Haskins, as administrator of her husband, Beuben Has-kins, against James Stewart and George Stewart, to recover damages for the death of intestate alleged to have been caused by the negligence of defendants. There was a verdict for plaintiff for $5,000. From'the judgment entered thereon defendants appeal.

Argued before Barnard, P. J., and Dykhan and Pratt, JJ.

*Joseph K. Daly,*for appellants. *Martin J. Keogh,*for respondent.

Barnard, P. J.

The case does not show that the defendants were guilty of actionable negligence. They were contractors for the building of a sewer in Yonkers. The plaintiff’s intestate was an employe of the defendants in the construction of the work. The sewer excavation at the place of the accident which caused the intestate’s death was a little short of 16 feet in depth, and 5 feet wide at the top. The excavation was protected by planks placed upright against the side. There were placed cross-pieces 4 feet apart between the planks. The upright planks were placed at a distance of 8 feet from each other. Along the top of the cut there were placed from 3 to 6 planks horizontally inside the uprights. Under this method of protection over a half mile of the seWer had been safely constructed. When within 35 feet of the end, a water-pipe' which had been placed in the street parallel with the sewer, and within 2 feet or thereabout from the edge of the trench, burst. There was under the public water-main a small private main placed there before the public one was put in. The accident was caused by one of these pipes suddenly bursting and Ailing the trench with water, and thereby causing a caving in of the banks. It was a question as to which of these pipes caused the accident. The defendants had laid the public water-pipe, but the case does not show that they knew of the existence of the smaller 'one. The public pipe could be laid without disclosing the smaller one under it. The bursting of either pipe was not one of the calamities which the contractor was bound to anticipate and guard against. There was nothing in the fact that a water-pipe was within two feet of the sewer which called for an additional safeguard against caving in. The bracing used was similar to that commonly used in constructing sewers with conditions similar to this. It was approved by the city engineer, and it did not give way until an unforeseen and unexpected bursting of the water-pipe, in no way connected with the plaintiff’s employment. This pipe was along the whole excavation, and sometimes as near as it was when it broke and Ailed the trench with water.' It appeared that the city water-pipe, at the place of fracture, was defective. This fact was unknown to any one before the accident. The case seems therefore to be controlled by *Burke*v. *Witherbee,*98 N. Y. 562. The protection was safe, judging by a safe use until the accident happened, and then the cause was outside of the danger which could be reasonably expected by the most careful of masters. It is not necessary, therefore, to examine the question whether the accident was within the risks of the employment, or the exception taken on the trial. We think the action failed upon the question of the negligence of the master. There should, therefore, be a new trial granted, with costs to abide event. All concur.