#### Bernhard Anderson, Respondent, *v.*Arthur McMullen, Appellant, Impleaded with Charles McDermott, Defendant.

Second Department,

June 29, 1911.

Master and servant — negligence — injury to workman by dumping con- . Crete — duty to furnish, safe place to work — failure to give warning.

A master’s duty to furnish a safe place to work includes the duty to exercise reasonable care and prudence to guard against such dangers as may reasonably be foreseen and guarded against.

If the place where the work is carried on may become dangerous by reason of perils not arising from the particular work in which the servant is engaged it is the master’s duty to provide for giving suitable warning to him.

Where in an action by a workman against his master to recover for personal injuries it appears that, while plaintiff was employed in patching one of two coffer dams built to hold concrete foundations for a trestle, a * dump ear containing two tons of concrete was run out on a temporary track over the dam and without warning dumped .upon the plaintiff; that no concrete had previously been put in the coffer dams and that no notice had been given of an intention to do so, or that the car, run out on the track, contained concrete, it is proper to submit to the jury the question as to whether the defendant was negligent in failing to give notice of the time when the dumping was to commence and in failing to provide for proper warning to the employees.

A master may not place his servant at a work made dangerous by the work of other employees without due effort to furnish him adequate protection and then escape the result of injury to him upon the plea that but for the negligence of the fellow-servants the accident would not have happened.

Even if the plaintiff saw the car run out on the temporary track, he was not bound to anticipate the discharge of concrete therefrom without proper warning. • !

Where, moreover, it is shown that considerable noise resulted from plain- ' tiff’s work, the question of bis contributory negligence is properly . submitted to the jury.

Burr, J., and Jbnks, P. J., dissented, with opinion.

Appeal by the defendant, Arthur McMullen, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of April, 1910, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the’31st day of March, 1910, denying the said defendant’s motion for a new trial made upon the minutes.

*548*E. Clyde Sherwood [Allan E. Brosmith, Edward J. Redington*and *.Frank V. Johnson*with him on the brief], for the appellant.

*Bertrand L. Pettigrew,*for the' respondent.

Rich, J.:

The defendant McMullen appeals from ajjudgment in an action for personal injury in consequence of the alleged negligence of the defendants, . and from an order denying his motion for a new trial. The defendant gave no evidence, and the judgment rests on the uncontradicted testimony of plaintiff ..and his witnesses.

The defendants afe contractors, engaged in work on the Pennsylvania railroad. The plaintiff was in their employ. At the place of the accident two excavations, each one hundred feet long, from twenty-five to thirty, feet wide, tapering to'a' width of about ten feet at the ends, and from twelve to fifteen feet deep, had been made, in which coffer dams were built to hold concrete for the foundation of a trestle. The work had been in progress for about three weeks before the accident. During the forenoon of the day on which the plaintiff was injured, he had been employed in patching the north coffer dam. In the afternoon, while engaged in this'work, a dump car containing two tons of concrete was run out on a temporary track over the coffer dam, and, without warning of any kind, dumped on the plaintiff, inflicting the injuries for which he has recovered. No concrete had been dumped in either coffer dam before plaintiff was injured, and no notice was given of any intention of dumping of concrete, or that the car, run out on the temporary track, contained concrete which it was proposed to • dump into the coffer dam.

" The learned trial justice, at the close of plaintiff’s evidence, denied a motion to dismiss- the complaint, and submitted to the jury the question of- the negligence of both parties. He-said: i£Itis claimed, however, with considerable earnestness, that-this place was not safe, and that the want of safety was due to the fact that a proper rule or regulation in the conduct of the business had not been established.; that the plaintiff, being in the situation that he was, was entitled to have had *549some regulation in the conduct of the business by which he would he given reasonable warning of any danger that might come to him in the natural operations of the work; In other words, it is said that there should have been a rule by which, in some manner, proper notice or warning would he given to the plaintiff when the car of concrete was placed upon the track and was about to he dumped into the hole where he was. You have heard the evidence that has been offered by the plaintiff upon that subject. There has been no evidence offered on the part of the defendants as to anything; and you will determine from that evidence whether there was such a reasonable and proper regulation in the conduct of this business as there should have been, and, also, whether the failure of the defendants to provide such a regulation was the cause of the plaintiff’s accident. 3⁄8 3⁄8 3⁄8 In view of some possible future action, I desire to submit to you and to have you answer in writing one question, namely: ‘Was the work in question so complicated as to require the promulgation and enforcement of rules for the plaintiff’s safety?’ To that you may answer yes or no, as you shall find the fact to be. Your general verdict will he a verdict for so many dollars for the plaintiff or a verdict for the defendant.” No exceptions were taken to the charge. The jury answered the question submitted to them id the affirmative and rendered a general verdict for the plaintiff. for $3,000.

I think that the question as to whether the defendants were negligent in failing to so regulate their business as to provide for notice to workmen in the coffer dam of the time when the dumping of concrete therein was to commence, and in failing .to provide for proper warning to such employees of the actual dumping of the concrete, was properly submitted to the jury, and that their conclusion should not be disturbed. The danger arose when the dumping of the concrete into the dam was commenced. The duty of the master to furnish a safe place includes the duty to exercise reasonable care and prudence to guard against such dangers as may reasonably be foreseen and guarded against. *(Pantzar*v. *Tilly Foster Iron Mining Co.,*99 N. Y. 368; *McGovern*v. *C. V. R. R. Co.,*123 id. 280.) If the place may become *550dangerous by reason of perils not arising from the particular work in which the servant is engaged, it is the master’s duty to provide for such warnings as will enable the servant, with the exercise of reasonable care, to guard against such additional danger. That the danger of running , a car of concrete over employees working in the coffer dam, for the first time, and discharging its contents into the dam without notice of any kind to such employees, could'be reasonably foreseen and guarded against, is so obvious as to require no discussion, and the submission to the jury of the question, as to whether, under the circumstances proven, proper rules guarding and protecting employees against such danger were necessary, was proper. *(Eastwood*v. *Retsof Mining Co.,*86 Hun, 91; affd., 152 N. Y. 651; *Morgan*v. *Hudson River O. & I. Co.,*133 id. 666; *Freemont v. Boston & Maine R. R. Co.,*111 App. Div. 831; affd., 187 N. Y. 571; *Kascsak v. Central Railroad of N. J.,*135 App. Div. 721.) A master may not place his servant at a work made dangerous by the nature of the work of other servants, without due effort to furnish adequate protection, and escape the result of injury to such servant upon the plea that but for the negligence of such coservants .that accident would not have happened. *(Western Electric Co.*v. *Hanselman,*136 Fed. Rep. 564; *Johnson*v. *Terry & Tench Co., Incorporated,*113 App. Div, 762; *Burns*v. *Palmer,*107 id. 321.)

Plaintiff’s contributory negligence was properly submitted to the jury. It is shown that considerable noise resulted from his work, and if he saw the car on the temporary track, he was not bound to anticipate the discharge of concrete therefrom without proper warning and an opportunity to avoid danger and injury from such contemplated- act. ' The evidence does not warrant a finding of contributory negligence- as matter of law. ■

No reversible errors are shown by the record; there-is .sufficient evidence to sustain the verdict, and the judgment and order must be affirmed, with costs.

Hirschberg and Woodward, JJ., concurred; Burr, J.., read for reversal, with whom Jenks, P. J., concurred on the last ground stated in the opinion.

*551Burr, J.

(dissenting);

I dissent upon the ground that the court was not justified in submitting to the jury the specific question whether the work in question was so complicated as to require the promulgation and enforcement of rules for the plaintiff’s safety. The only rule suggested in that connection is that plaintiff’s fellow-workmen should not dump concrete into the excavation where he was employed without giving him warning of their intention so to do. *“*Bules are important where the conduct of the business is complicated or dangerous, Jor their utility has been proven, or where it is obvious that their adoption and enforcement are necessary precautions in preventing accidents.” *(Knickerbocker*v. *General Railway Signal Co.,*133 App. Div. 787.) Dumping a car loaded with concrete into an open excavation is as simple a mechanical ac^as can be readily conceived of. The excavation in which plaintiff was injured was not of great depth, nor was there any thing to hide a person working at the bottom thereof from the vjfew of all the workmen who were engaged in moving and dumping the car. No master could reasonably be called upon to anticipate’that the persons so engaged would willfully or carelessly dump the contents thereof upon a fellow-workman who was plainly within their sight. Therefore the master cannot be found to be negligent in failing by rule to forbid such conduct. In addition, I think that the evidence offered by plaintiff through the witnesses Hanson and Turney, to establish general custom and usage for the adoption of such a rule, was insufficient for that purpose. In only one instance did the witness testify to the existence of such a rule in the locality where plaintiff was employed. The other witness testified to conditions remote therefrom, two in Chester,. Pa., and one at Wilmington, Del. In neither instance were the conditions existing at the place of work or surrounding the performance thereof given in detail. Testimony of specific instances' merely may not establish genéral usage unless the number of instances is relatively large as compared to the whole number. Quoting from 1 Wigmore on Evidence (458, § 379, note 1): “Of course individual instances, offered one at a time, are receivable; the practical question is commonly whether enough have been offered to suffice to go to the *552jury.” ' There is nothing in this case from which the court could primarily determine as to snch sufficiency. There is no evidence as to the number of firms and corporations engaged in similar work in the locality in which the accident occurred — whether five or five hundred. In the absence thereof, evidence of isolated instances presents no question for the jury. *(Heiser*v. *Cincinnati Abattoir Co.,*141 App. Div. 400.)

Jenks, P. J., concurred on ihe last ground stated in the opinion.

Judgment and order affirmed, iwith costs. .