
    Mary Carr, as Administratrix, etc., Resp’t, v. Michael Sheehan et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 17, 1894.)
    
    Nbg-ligence—Contributory.
    Plaintiff’s intestate, wlio was injured by the caving in of a sand bank, from which he was taking sand, was held to be guilty of contributory negligence, where he had had much experience in such work and knew the condition of the bank.
    Appeal from a judgment entered on- the verdict, and from an-order denying a motion for a new trial.
    
      George W. Hall, for app’lts; C. D. Kiéhel, for resp’t.
   Haight, J.

This action was brought to recover damages for a personal injury sustained by the plaintiff’s intestate. The suit was originally brought by him, but he died after the rendition of the verdict. It appears that the defendants were the owners of a sand bank near the village of Brighton, N. Y., and were engaged in selling sand therefrom by the load. On the 3d day of August, 1892, Carr.went to the defendants’ sand bank, and got a load of sand. On the same day he returned for a second load, and while engaged in shoveling the sand into his wagon the bank caved in, covering his legs with sand, up to his body, causing the injury for which damages -are sought to be recovered.

Upon the question of the defendants’ negligence, there is some conflict in the evidence, which doubtless raised a question for the jury upon that branch of the case. Carr testified that when he went back for the second load he stated- to the defendant Michael Sheehan that he wanted some coarse sand, that the other was too fine,, and that Sheehan said: “Drive around here,’ where the sand lay in the bank. ‘Keep out this way, off the sand, so that you can take sand clean from the bottom without running over it and trampling it down.’ And when I got where he wanted me he said, ‘Whoa,’ and the team stopped. I then jumped out, and commenced to shovel as fast as I could. I drovQ in between the sand bank and dirt. It was dug down a little below the top of the soil, and I drove pretty close to that; I should think, 12 or 13 feet from the bank.” He further testified that the first thing he knew the bank came down from the top, and knocked him back against the wagon. The defendant Michael Sheehan testified that he saw the plaintiff on the day of the accident, when he came after this load of sand, and told him “the bank was dangerous up in the place where he was; to get out; and he said, ‘No,’ he would stay there. And I said, ‘You want to get down. It is dangerous, and may happen to fall down.’ He turned his horses a little out from there, and I told him that would not do ; to get out; and he said ‘No,’ he was not going to move out, for me or anybody else ; he would stay there.” Two other persons were present, who corroborate the defendant as to his warning that the bank was dangerous. The defendant further denies that he told the plaintiff to stop his team at that place. Carr admits that at the time he went for the first load the defendant said something, but he does not recollect what it was. He, however, denies that at the time he went for the second load anything was said to him in reference to the bank being dangerous. If the defendant knew that the bank was dangerous, it was doubtless his duty to warn Carr, and as to whether he did so was a question of fact for the jury.

Upon the question of Carr’s contributory negligence, we have more trouble. He testified that he had been in the habit of drawing sand from sand banks for years, and had seen banks cave in at previous times when he had been drawing sand. He therefore knew of the liability of banks of that character to cave. He further testified that the bank was nearly perpendicular, and that at the top there was a little projection. Speaking in reference to the first time he was there, he said the bank was straight up and down, but he did not see any reason to apprehend danger; but when he returned he says, “I did when I came back for the second load.” And, in answer to the question as to whether the bank was in the same condition when he went in for the second load, he replied, “ It was worse ; ” that he noticed that the bank was overhanging more before he went underneath it, but, notwithstanding, he went under where the bank hung over; that the bank overhung more because the defendant had knocked down the sand before he went in; and he observed that fact, and concludes by saying, “ I saw it was not safe.” It thus' appears that he knew the condition of the bank, knew that it was liable to cave in, and yet he went to work loading his wagon under these circumstances. We are inclined to the view that he assumed the risk and took the chances, vand was therefore guilty of contributory negligence. It does not •’appear that the defendants knew anything more about the bank than he. It was before his eyes. He could see its height, that it was perpendicular, and that it was composed of sand. He was familiar with sand banks, and had for years worked in drawing sand therefrom; had seen them cave, and on this occasion knew that the bank was not safe. In Marsh v. Chickering, 101 N. Y. 396-399, it was said: “ Where a servant has equal knowledge with the master as to the machinery in use or the means employed in the performance of the work devolving upon him, and a full knowledge of existing defects, it does not necessarily follow that the master is liable for injuries sustained by reason of the use thereof. ”

In 2 Thomp. Neg. 1009, it is said: “The master is under no higher duty to provide for the safety of a servant than the servant is to provide for his own safety. It follows that if the knowledge or the ignorance of the master and that of the servant in respect to the character of the machinery are equal, so that both are either without fault or in equal fault, the servant cannot recover damages of the master.

The relation of master and servant did not exist between Carr and the defendants, but he appears to have had equal knowledge with them in reference to the condition of the bank, and is consequently not in a condition to charge negligence upon them, and at the same time excuse himself. It follows that the defendants’ motion to dismiss the complaint should have been granted. The judgment and order appealed from should be reversed, and a new trial ordered, with costs to abide the event.

All concur.  