
    William Hayes, Respondent, v. James Fay, Appellant.
    (Supreme Court, Appellate Term,
    January, 1898.)
    New York city — Sheath-piling not required by law in sewerage excavations — Negligence — Erroneous charge.
    The provisions of the Consolidation Act (Laws of 1882, chap. 410, § 473, as amended by Laws of 1885, chap. 456, Laws of 1887, chap. 566, and Laws of 1892, chap. 275), relative to placing, sheath-piling in excavations in public streets ’of the city iof New York,' do not relate to excavations for sewerage connections, as they are, by the same statute, placed under the exclusive control of the common council; and hence where' an employe of a contractor with the city to connect a public sewer with adjoining' property brings an action against the contractor to recover damages for injuries sustained by the fact that the banks of' an excavation caved in, it is erroneous for the court to charge the jury that a person violating an’express statute is a wrongdoer and as such is negligent in the' eye of the.law, and that the mere omission to comply with the statute is prima facie evidence of negligence, as such a charge ignores the material questions whether sheath-piling was, under the circumstances, necessary, whether the danger was not obvious and whether the plaintiff himself did not create the very danger of which he now compains.
    Hayes v. Fay, 21 Misc. Hep. 538, reversed.
    
      Appeal by defendant from affirmance by the General Term of the City Court of a judgment in favor of plaintiff.
    Daniel Daly, for appellant.
    W. Stainton (J. P. Berg, of counsel), for respondent.
   McAdam, J.

The action is by an employee of the defendant to recover damages for injuries sustained March 7, 1896, while working on Second avenue near One Hundred and Twenty-second street, in an excavation made in the highway to connect the public sewer with adjoining property. The injuries are alleged to- have been caused “ by the' carelessness and negligence of the defendant in not providing the plaintiff a secure and safe place to work, as was his duty to do, in that he omitted and failed to sheath-pile said excavation so as to prevent the same, from becoming dangerous to life and limb, under the requirements of section 473 of chapter 410 of the Laws of 1882, and the amendments thereto made by chapter 456 of the Laws of 1885, chapter 566 of the Laws of 1887, and chapter 275- of the Laws' of 1892.” - -

The statutory provisions relied on constitute section 473 of the-Consolidation Act, and, as their title plainly indicates, relate to theconstruetion of buildings in the city of Hew Tork, and affect the building and fire departments of said city. The title of an. act is sometimes an invaluable guide to its right construction (Endlich on Stat., § 59; 1 Kent’s Com. 460, 461; Smith’s Com., §§ 556, 557,. 558; Brinckerhoff v. Bostwick, 23 Hun, at p. 239; Elby’s Appeal, 70 Penn. St. 311; Matter of Village of Middletown, 82 N. Y. 196),. particularly where it is a private or local bill, -which must not ein- * brace more than one subject, and that expressed in the title.. Const., art. 3, § 16.

The statute invoked by the plaintiff does not relate to excava-. tions made in the public streets for sewerage connections. Such excavations axe únder the exclusive control of the common council (Consol. Act, '§- 85, subd. 5), which is vested with power by ordinances “ to regulate the opening of street surfaces, the laying-of gas and water mains, the building and rebuilding of sewers,” etc. These ordinances were not proved, do- not appear in the case, and are not, therefore, before us for consideration.

Independently of any statutory provision a master is bound to-furnish his servant a safe and proper place in which to do his work; and an employer, if guilty of negligent omissions to guard against dangers which he ought reasonably to 'have anticipated, may make himself liable to an .employee injured by the caving in of an excavation supposed by the servant to have been made safe by the master before being directed to enter it. Kranz v. L. I. R. R. Co., 123 N. Y. 1; Stuber v. McEntee, 142 id. 200. But the difficulty is that the present action was not tried, as the cases last cited were, with reference to the peculiarities of the particular situation, bpt upon the .erroneous assumption that because the defendant did not comply with the provisions of section 473 of the Consolidation Act, supra, in regard to sheath-piling, such omission'was in and of itself prvma facie evidence of negligence, upon which the jury were authorized to find against the defendant.

•Following this theory the court,- at the plaintiff’s request, charged the jury that “ a person violating' an express statute is a wrongdoer, and as such is negligent in the eye of the law,” and that the mere “ omission to comply with the statute is prima facie evidence of negligence in an action brought by one who has been injured.” The defendant’s counsel then requested the court to charge that the statute was inapplicable, and this request was declined. These rulings were duly, excepted to.

Thus the violation of the provisions of a statute having no , relevancy to the issue oh trial was made the test of the defendant’s liability, and the question of his negligence, independently of such provisions, was entirely brushed aside.

Whether sheath-piling, was necessary to make the excavation reasonably sáfe, considering, the nature of the soil, depth and width of excavation, the weather and the alleged frozen condition of * the ground at the time; whether in view of the plaintiff’s twenty years’ experience on such work 'the danger was at once obvious to him, and, therefore, one of the assumed risks of his employment (Kinsley v. Pratt, 148 N. Y. 373; Weston v. City of Troy, 139 id. 281; Hickey v. Taaffe, 105 id. 26, 35, 36; Ciriack v. Woolen Co., 146 Mass. 182; Dorney v. Sawyer, 157 id. 418); and whether, the plaintiff himself did not create the very danger of which he complains (Collins v. Crimmins, 11 Misc. Rep. 24; O’Connell v. Clark, 48 N. Y. Supp.,74)—these were proper questions for the jury to consider before mulcting the defendant; yet the trial judge,' instead of' submitting them; gave a binding instruction, the effect' of which was to hold the defendant a wrongdoer and as negligent in the eye of the law. This was almost tantamount to a direction to find for the plaintiff, leaving open to the jury only the quantum of damages.

For this error, and without considering the other objections urged by the defendant, the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Daly, P. J., and Bischoff, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  