
    Guiseppa Reris, as Administratrix, etc., of Paolo Moscarello, Deceased, Appellant, v. Samuel B. Haines, Respondent.
    First Department,
    November 5, 1909.
    Master and servant — negligence — evidence — prior decision — res adjudicata.
    Where a judgment in favor of the plaintiff suing to recover for the death of her intestate was reversed on a former appeal on the ground that she failed to show that the injuries were the proximate cause of death without any expression of opinion as to the sufficiency of the evidence to show negligence, the former decision is not res adjudicata as to the defendant’s negligence.
    Evidence in an action to recover for the death of a workman alleged to have been caused by the fall of a stone from an embankment examined, and held, to present questions íor the jury as to whether the decedent understood a warning alleged to have been given ; whether he was iree from contributory negligence, and whether the defendant should have removed or shored up the stone or warned the decedent of the danger.
    Patterson, P. J., and Ingraham, J., dissented.
    Appeal by the plaintiff, Gmiseppa Reris, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Hew York on the 7tli day of May, 1909, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term.
    
      M. L. Malevinsky, for the appellant.
    
      Eugene A. Philbin [Stephen P. Anderton with him on the brief], for the respondent.
   Laughlin, J.:

On a former appeal herein from a judgment in favor of the plaintiff, the judgment was reversed on the ground that the plaintiff failed to show that the injuries sustained were the proximate cause of decedent’s death. (Moscarello v. Haines, 130 App. Div. 135.) One of the members of the court, in°a concurring opinion, expressed the further opinion that the plaintiff failed to show that the defendant was guilty of negligence. The majority of the court expressed no opinion on that point. The failure of the plaintiff to show that the death of the decedent was due to the injuries went to the merits of the case, and, therefore, no inference as to the opinion of the court was drawn, one way or the other, from the fact that an opinion was not expressed with respect to the sufficiency of the evidence to show negligence. Even though the records be the same, the former decision of this court is not res acbjudicata on the question of the defendant’s negligence.

I am of opinion that the evidence on that point was sufficient to take the case to the jury. The decedent was an Italian laborer who could not speak or understand the English language well, and whose hearing was affected. The accident happened while an excavation was being made on the defendant’s premises for the foundation for a building. The work had been let by contract but the contractor failed, and the defendant had taken charge of the work and was prosecuting it by day labor for the account of the contractor. A stone more flat than round, and about eighteen inches wide afid three feet long, was encountered during the process of excavation, which projected horizontally some twelve to sixteen inches, or about one-third of its length, within the lines of the excavation. The attention of the son of the defendant, who represented him on the work and had a general power of attorney to execute contracts and had final authority in all matters' relating to the work, was drawn to the fact that this stone was met with before the accident, and the attention also of one Clancy, under whose direction and supervision, representing the defendant, the work was being done, was also drawn to it, and he consulted the foreman, the stone masons and the laborers by putting the question to them as to whether the stone should be left to form part of the wall and be racked up and thus supported by the permanent wall before the earth underneath it should be excavated, as had been done in another instance on the same work, or removed, and it was determined, without objection on the part of any person present, that it should be left to form part "of the wall. The work was then proceeded with and directions were given not to excavate under the stone and there is no evidence that” such directions were disobeyed. After the general level of the excavation reached a point about eighteen inches below the stone the stone fell or slid out of the embankment and injured the decedent who was working within a few feet of it. The stone was on the side of the excavation toward a |>ublie street. The excavation showed that for some four feet in depth it was through filled earth and not through virgin soil, and although the record does not show to what depth the excavation had been made there is evidence tending to show that part of the soil and material around the stone was filled material, consisting in part of cinders evidently placed there as a foundation for the street or curb. The boulder was examined by Olancy and tested by the pressure of his weight and by hammering, with a view to determining how far it projected into the bank and how fairly it was held, and he, therefore, stated to those whom he consulted with respect to whether it should be left for part of the wall or not that it appeared to be firm and he testified that such was the fact. He further testified with respect to the embankment through which the excavation was made: “ It was a sufficiently hard bank to hold itself up and not a made bank all the way. It had been partially filled in.” Ho directions were given to have the stone shored up, although that might have been done and would have supported it. The son of the defendant observed that the decedent was working immediately in front of the stone, facing away from it, within a few minutes of the accident, and, according to his testimony, he took hold of the decedent by the shoulder and turned him about, and drawing his attention to the fact that the stone might slip, told him to work with his face towards it, saying that if the stone should then slip it would not hurt him, to which he claims the decedent responded “ All right.” It does not appear whether or not this direction, if given, was observed by the decedent; but it was a question for the jury whether or not the decedent heard and understood the direction if given. There is no evidence to indicate that the decedent had any special knowledge or experience to enable him to judge of the character of soil or to know whether the excavation was being made through filled or virgin soil or to appreciate the danger. The question of contributory negligence, therefore, was for the jury.

I am of opinion that it was also a question for the jury to determine whether or not the defendant should have removed the stone or shored it up or warned the decedent of the danger. It may well be that if an employee has the same knowledge and opportunity to judge of the danger as the master the master may, as is claimed to have been attempted in this case, through his superintendent, who was in direct charge of the work, call upon the employee to assume the risk with him ; but it does not appear that the decedent was personally consulted or that he heard or understood the inquiry, if any such inquiry was addressed to the employees upon the work.

It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

McLaughlin and Scott, JJ., concurred; Patterson, P. J., dissented; Ingraham, J., dissented on opinion on former appeal (130 App. Div. 138).

Judgment reversed, new trial ordered, costs to appellant to abide event.  