
    Alberta Overbaugh, as Administratrix, etc., of Harry H. Overbaugh, Deceased, Respondent, v. Henry E. Wieber and John T. Watson, Appellants.
    
      Negligence — injury to a workman.from a ditch caring in— contributory negligence — assumption of risk.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, it appeared that the defendants were experienced contractors who had constructed a sewer trench about nine feet in depth and three' feet wide, the sides of which were not braced or sheathed; that on August 21, 1904, a portion of the side of the trench caved in; that on August twenty-third, while the intestate and other workmen in the employ of the defendants were removing the debris from the trench another cave-in occurred which resulted in the death of the intestate. The intestate had been working for the defendants only about two hours when the accident occurred -and he had never before been engaged in similar work.
    
      Held, that although it appeared that the intestate must have been aware of the previous cave-in and although, prior to the accident, small quantities of dirt were continually falling upon him, it could not be said that he was guilty of • contributory negligence, as matter of law, in continuing to work in the trench;
    That the jury might properly find that the intestate’s knowledge of the dangers of the situation was not equal to that of the defendants, and that the intestate did not assume the risk of the accident.
    Appeal by the defendants, Henry E. Wieber and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Ulster on the 14th day of February, 1905, upon the verdict of a jury for $5,000, and also from an order bearing date the 10th day of February, 1905, and entered in said cleric’s office, denying the defendants’ motion for a new trial made upon the minutes.
    The defendants were contractors laying sewer pipe in the village of Saugerties. Upon the 23d day of August, 1904, a trench had been constructed in one of the streets of said village which was about nine feet in depth and three feet wide. Upon the twenty-first of that month there had been somewhat of a cave-in in said trench, part of the side falling into the trench. The dirt having thus fallen in had been removed or was being removed by the plaintiff’s intestate and others upon the morning of the twenty-third of August. At that date, while plaintiff’s intestate was in the ditch, the sides of which were not braced or sheathed, a large amount of dirt caved in upon him,, causing his death. The intestate entered the defendant’s employment at seven o’clock on the morning of the-day of the accident, which occurred at nine o’clock on that morning. This action is brought by his administratrix in behalf of his wife and infant child to recover damages for the injury claimed to have been caused by the defendants’ negligence.
    
      Augustus H. Van Buren, for the appellants.
    
      Howard Chipp, for the respondent.
   Smith, J.:

Appellants’ "counsel rests his claim for reversal of this judgment upon the ground that plaintiff’s intestate was guilty of negligence which contributed to produce his death, and also upon the ground that he, with full knowledge of the danger of the situation, continued in defendants’ employ, thereby assuming such risk as was incidental to the unguarded trench. ‘That the jury was authorized to find the defendants guilty of negligence jn not protecting the plaintiff’s intestate is not questioned in the appellants’ brief. Nor is any question made as to any ruling by the learned trial judge during the progress of the trial.

As we view this case it will not be necessary here to determine whether the assumption of risk is an affirmative defense which must be pleaded, or whether the 3d section of the Employers’ Liability Act (Laws of 1902, chap. 600) applies to cases brought upon .the commón-law liability without service of the notice, prescribed in section '2 of the act. Granting for the argument the appellants’ contention upon both these questions, we still think the judgment was right and must be affirmed. -

The plaintiff’s intestate was a young man twenty-six years of age. It appears from the evidence of his wife that he had never before been engaged in ditching. He had worked as a truckman, upon a steamboat and upon a farm. /The work óf ditching was, however, new to him. While there had been a cave-in of which he must have been aware, the extent to which the ditch was filled thereby does not appear. The trench was filled to the depth of a foot only as it appeared to him on the morning he went to work. While dirt was falling continually while he was there at work, it- was only in small quantities. There was nothing'in anything that happened to give him notice as matter of law that the dirt might fall into the trench in such large quantities as to -.bury him and take his life. Whether or not he was guilty of contributory negligence in working there was in our judgment properly submitted to the jury, and we cannot say that the verdict which they found was not justified by the evidence.

Nor had the plaintiff’s intestate knowledge equal to that of the defendants of the dangers of the situation. The defendants were experienced contractors. They had dug ditches before. With 200 men in their employ in digging ditches, some of them nine feet deep, it was their business to know the danger of a cave-in and to protect the trenches in order that the place in which their men were compelled to work might be made safe. The doctrine of assumption of risk by an employee is based upon his knowledge equal to that of the master of the dangers inherent in the situation. The jury might well have found in the case at bar that the plaintiff’s intestate had no such equal knowledge, ahd, therefore, that he did not assume the risk of the accident for which his administratrix has recovered this verdict.

The judgment should, therefore, be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.  