
    William Hayes, Respondent, v. James Fay, Appellant.
    (City Court of New York, General Term,
    October, 1897.)
    Negligence — Failure of a contractor to provide a street excavation with sheet piling, as required by law.
    The question whether an excavation for a sewer trench should be furnished with sheet piling under the statutory provisions requiring all such excavations to be properly guarded in order to prevent them from becoming dangerous to life and limb, is one of fact; and Where a jury determines that a city contractor has beén negligent in failing to provide such sheet piling in such an excavation, he becomes liable to an employee who was injured, while digging in such a trench, because the wall of earth, surrounding the excavation, fell upon him.
    Appeal from a judgment in favor of plaintiff, entered upon a verdict.
    Daniel Daly, for appellant.
    William Stainton, for respondent.
   Per Curiam.

The defendant, a laborer, was employed by the plaintiff to assist in digging a trench for a sewer in this city, and while so engaged the wall of the earth surrounding the excavation fell into it, and plaintiff, who was in the trench, was injured.

The law- provides that all such excavations shall be properly guarded so as to prevent the same from becoming dangerous to life and limb, and shall be sheet piled, when necessary to- prevent the adjoining earth from caving in, by the person or persons causing the excavations to be made. Therefore, it became the. duty of the plaintiff to. sheet pile, the excavation in question, if .necessary, to prevent the same from becoming dangerous to life and limb.

Whether or not it became necessary to use such piling in this instance, was a question of fact for the jury to determine, and it was submitted to them, and they decided against the defendant. Therefore, they declared that the defendant in failing to provide such piling was guilty of negligence.

The jury also decided that the plaintiff was free from contributory negligence, and their findings were sustained by the evidence and shall not be disturbed by' us; and, therefore, the judgment must be affirmed, with costs'.

Present: Fitzsimons, Conlan and Schuchman, JJ.

Judgment affirmed, with costs.  