
    Lorenzo Bello, as Administrator, etc., of Dominick Bello, Deceased, Appellant, v. Albert L. Willey, Respondent.
    
      Master and servant—negligence.
    
    Appeal by the plaintiff from a judgment entered in the office of the clerk of the county of Fulton on the 19th day of October, 1911.
   Judgment affirmed, with costs. All concurred, except Betts, J., dissenting in opinion.

Betts, J. (dissenting):

I dissent. There was evidence in this case from which the jury might have found that the plaintiff’s intestate was -put to work by the foreman, Coleman, carrying a heavy form along a path or strip of ground which was from three feet wide upwards in its narrowest part with a high mound of spoil bank of clay, earth, etc., thrown up on one side and a hole thirty feet deep on the other side with seventeen or eighteen feet of water in the hole with sheathing boards only, about sixteen feet high, water two feet above the sheathing and the upper part of the hole -unprotected by sheathing, constantly giving way by the force of gravity and the recent rains, and the unguarded path or way along which he was walking descending or sloping towards the hole with the form in front of him held in such a way that he could not see where he was walking except a long distance ahead with the foreman carrying the other or front end of the form walking in front of him, deceased looking ahead and that while j^hus employed by direction of the defendant’s foreman, he fell into the water in the hole and was drowned. That the spoil bank was only about thirty-six feet in diameter and nearly circular and the foreman could have gone around the bank with the form followed by the deceased and have ^.voided the hole at its narrowest part where the deceased fell in. The deceased had been away from the plant for about a month and had only been back there two days and it was not shown that he had worked in this position after his return, and the jury could have found, that ¡the bank had given away and changed during his absence from the evidence. The evidence was largely given by employees of 'the defendant. Under the statute the question of the contributory negligence of the deceased was for the jury and less evidence is sufficient as to the absence of contributory negligence where the accident resulted fatally.' Under such circumstances as these it was a question for the jury as to whether the defendant was negligent and whether the deceased was free from such negligence as contributed to the injury, as was also the assumption of the risk of- his employment. The deceased was not making his own position in the work that he was doing; it had been made and was selected by the foreman; so that therule quoted by the defendant does not apply here. The deceased was not creating his own position and the rule does apply that it was the master’s duty to furnish the deceased with a reasonably safe place to do his work, reasonably safe considering the nature of his employment. The judgment appealed from should be reversed and a new trial granted, with costs to plaintiff to abide the event. 
      
      See Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36), art. 14; since amd. by Laws of 1910, chap. 353.— [Rep.
     