
    Percival J. Wood, Respondent, v. Luke A. Burke and Sons, Appellant.
    Second Department,
    October 18, 1907.
    Master .and servant — negligence — injury during- construction of building — erroneous charge. . ■
    In an action Against, a master by a servant who was .injured, by the fall of an ■ article from the Upper stories of a building under construction, when the court has charged as to the duty of the master to furnish a safe place to work, it is error to refuse to charge that he is never the insurer of the workmen on a building. ' .
    
      Appeal by. the defendant, Luke A. Bnrke and Sons,'from a judgment of the Municipal Court of the city of Mew York, borough of 9 Queens, in favor of the plaintiff, rendered on the 26th day of December, 1906.
    
      Allan E. Brosmith, for the appellant.
    
      George F. Richey [ William E. Stewart with him on the brief], for the respondent.
   Per Curiam :

The action i& by. servant. against master for negligence. The plaintiff, while at work as a bricklayer in a building in the course ,of construction, was struck by a falling .thing from the upper part, of" the building and injured. The alleged negligence is that the master failed to furnish a safe and proper place for the servant to work in ; that the servant was put. at work-in a place not prope'rly protected against the fall of such things.. The Municipal .Court was requested to charge the jury that the master is never the insurer of the. safety of a- workman on a building, and the court declined so. .to charge under exception.- While the request'was general, we cannot say that it"was not germane,- especially in. view, of the fact that the court had already charged the jury that it was the duty of the master to give the employees safe place' to work in. We cannot say that the effect of. such a charge was not to instruct the jury that the master was held to a higher rule of liability than, that imposed upon, him by law. For these reasons we think the judgment, must be reversed and a new trial ordered, costs to abide the event.

Present — Jerks,-Hooker, Gaynor,- Rich and'MiLLER, JJ.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  