Powers v. First National Bank

Miller, J.:

This is a negligence action by a servant against the master. The plaintiff was employed in the construction of a tunnel or shaft and an incline for the running of ore cars from a mine. The tunnel or shaft had been opened, and rock, a few feet above the opening, was being blasted away for the incline. For the purpose of preventing the rock and earth falling into the tunnel, a covering was made, consisting of slabs six or seven feet long, nailed at either end to the timbers at the opening of the tunnel. After a blast it was observed that one of the slabs had been' struck and carried away, and the plaintiff’s superintendent directed him to put another slab in its place. • While undertaking to do that, he stepped upon one of the remaining slabs, and it either turned or his foot slipped and he fell through the hole into the tunnel, sustaining injuries for which this suit is brought.

The learned trial justice submitted to the jury the question whether the defendant furnished the plaintiff a safe place in which to work; but the slab covering of the tunnel opening was in no sense a place to work furnished by the master. It was a mere detail of the work itself.' Indeed, the plaintiff was injured while repairing the so-called place to work, and the evidence does not disclose but what the condition which caused the plaintiff to fall was the very thing which he was sent to repair. The slabs were set at an angle. It appears that there was snow on the ground, and it is quite probable that the plaintiff merely slipped on one of the slabs and fell through the hole. At any rate, the doctrine of safe place had no application. (Citrone v. O'Rourke Engineering Const. Co., 188 N. Y. 339.)

The judgment is reversed.

Hikschberg, P: J., Woodward, Burr and Rich, JJ., concurred.

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