
    Herman Weinert, Respondent, v. Merchants and Shippers’ Warehouse Company, Appellant.
    Fourth Department,
    July 7, 1908.
    Master and servant—injury by- fall of flour sacks—safe place to work— failure to give warning — excessive damages.
    It is the duty of a master to furnish a reasonably safe place to work, which duty cannot be delegated to a superintendent or foreman..
    Where a servant was injured by the fall of a pile of sacks of flour which had been placed in the warehouse before he came to work, and the master’s foreman knowing it to be dangerous failed to warn him, the questions of negligence and contributory negligence are for the jury.
    Under the circumstances disclosed a verdict for §8,200 is excessive and should - be-reduced to §2,500.
    Spring and Kruse, JJ., dissented in part.
    Appeal by the defendant, the Merchants arm Shippers’ Warehouse Company, from a judgment of the Supreme Court in favor of the, plaintiff, entered in. the office of the clerk of the county of Erie on the 15 th day of November, 1907, upon the verdict of a jury for $5,200, and also from an order entered in said clerk’s office on the -15th of November, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      Hoyt & Spratt and H. E. Rourke, for the appellant.
    
      Stephen V. O' Gorman and John F. Ryan, for the respondent.
   Williams, J.:

The judgment and order should be reversed, with costs to the appellant to abide event, .unless plaintiff stipulates to reduce verdict to $2,500, in which event judgment should be modified accordingly, and as so modified affirmed, without costs.

The action was brought to recover damages for personal injuries alleged to have resulted from defendant’s negligence.

The plaintiff was an employee in defendant’s storage warehouse, where large quantities of flour in sacks were stored and handled. The flour came in by carloads of 250 to 280 sacks weighing about 140 pounds each. Each carload was piled by itself in the warehouse in five sections. The manner of constructing the piles is described in the record. It need not be stated here. The different carloads were piled close together. The sections of the same carload were a few inches only apart. After the .flour was received in the warehouse it was mixed and repacked for reshipment, and . in that work flour packers were employed and machinery used. Plaintiff was one of the men employed in and about this. warehouse handling the flour and loading and unloading it. There were eight men so engaged under a foreman. Plaintiff never piled any of the flour in the warehouse, but had been working there for some time before the accident, and was familiar with the manner in which the piles were constructed. At the time of the accident plaintiff and another workman were engaged in throwing loose sacks of flbur upon trucks to be wheeled away by other workmen. They were near a carload pile, all but two sections of which had been removed by others. These two - sections, left by themselves, and being twelve and seventeen sacks high, respectively, were, so insecure that they fell over, and plaintiff was caught under them and injured. Holmes, the foreman, and Schaeffer, the superintendent and manager of defendant, were in the warehouse at the time of the accidént. The foreman had directed the plaintiff to do the work he was engaged in, and testified on the trial that he knew the place where the plaintiff was set to work was dangerous by reason of the liability of the two sections of the piles of sacks to fall over, and yet failed to warn the plaintiff of the danger. Holmes also testified to conversations with Schaeffer prior to the accident as to the danger of the pile, of which these two sections were part, falling, and they were taking down and repiling the same at the time of the accident. Two of the five sections had ' been taken down and removed some days previous, and the other section was used in the mill, leaving the two in question still standing. The higher one was about twelve feet and the other about eight feet high, and they were not braced or supported in any way.

The court submitted to.the jury the question of contributory negligence of plaintiff, and "in that there was no error. It also submitted the question of defendant’s -negligence, charging that it was defendant’s duty to provide plaintiff with a reasonably safe place to work, or 'at least to warn him that the place was unsafe. In this, I think, the court was right. This pile had been placed in the warehouse before plaintiff came there to work. It was not put there by plaintiff’s coemployees. The defendant’s superintendent and foreman knew it was dangerous,'and that it was unsafe to work close by it, certainly without knowing of its dangerous condition, so as to look out for it, and yet plaintiff, was in no way warned of the condition of things and left to take the chances of. injury by reason of a danger unknown and" unappreciated. Certainly, the defendant should be held liable for injuries received under these circumstances. (Simone v. Kirk, 173 N. Y. 7,13.)

■ It was the duty of defendant to furnish plaintiff a reasonably safe place to work. This duty could not bé delegated to a superintendent or foreman, so as tó relieve the defendant from liability for negligence in this respect. ,

There is no question here as to a detail of the work or negligence of a coemplóyee..

I think the right to recover was properly .disposed of by the court and the jury.

I am, however, of the opinion that the verdict was excessive in amount and that the judgment and order should be reversed for that reason, unless the /plaintiff stipulates to reduce the verdict to 12,500 from" $5,200.

It is not necessary to discuss this question or the evidence relating, thereto, nor the, reported cases. It is a question of sound judgment by the court. '

All concurred, except Spring and Kruse, JJ., who voted for affirmance; ..

Judgment and order reversed and new trial ordered, with costs to appellant to abide event, upon questions of law and fact, unless fche plaintiff within twenty days stipulates to reduce the verdict to the sum of $2,500 as of the date of the rendition thereof, in which event the judgment is modified accordingly, and as so modified is, together with the order, affirmed, without costs of this appeal to either party.  