
    Otto Schmidt, Resp’t, v. The Steinway & Hunter’s Point R. Co., App’lt.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    1. Neqligíence — Verdict.
    Where the question of contributory negligence is fairly submitted to' the jury their verdict must control.
    3. Same — Fellow servants.
    Negligence of a fellow servant is not a defense except for the common. employer.
    Appeal from judgment in favor of plaintiff, entered upon verdict.
    Action for personal injuries. Plaintiff was working under a. contractor in laying a sewer, and while in the trench was injured by a section of sewer pipe which fell upon him. Sewer pipe had been placed around the excavation as a guard, with planks upon them. The driver of one of defendant’s cars, in passing, knocked this pipe into the trench. It appeared that the driver stopped his team, but was told by the contractor’s foreman to come on. Testimony was introduced on this trial to show that the plank on which this pipe was placed was insecure and that plaintiff helped to adjust it. The court submitted the questions of negligence and contributory negligence to the jury, instructing them that the burden of proof on both questions was upon plaintiff.
    
      W. J. Foster, for app’lt; M. L. Towns, for resp’t.
   Dykman, J.

Upon the first trial of this action the complaint of the plaintiff was dismissed at the circuit, and appeal was taken to this court, and we decided that the case was a proper one for the determination of a jury. 29 N. Y. State Rep., 201.

Under such decision a new trial has now been had, and the jury ■ has rendered a verdict for the plaintiff. The cause was tried without an error, and the charge of the trial judge laid a heavy burden upon the plaintiff, but it was successfully sustained, and we cannot interfere.

The judgment and order denying a motion for a new trial should be affirmed, with costs.

Pratt, J.

Most of the questions upon which this appeal depends were so fully considered on a former appeal as to require no further discussion.

It is now urged that as plaintiff himself adjusted the block upon which was placed the pipe whose fall caused the injury, he. must be regarded as guilty of contributory negligence.

One answer to this suggestion is that there is no reason to suppose the block was improperly placed. The plaintiff was at the bottom of the sewer, necessarily depending upon those above him for instructions how to place the block; and plainly the block could not be so placed that a blow from the moving car would, not displace the pipe.

Moreover the question of contributory negligence was fairly submitted to the jury. Their verdict must control.

The foreman does not testify that in this instance he gave orders to the driver to start his car. But if he did, defendants cannot avail themselves of his negligence to defeat this action. Negligence of a fellow servant is not a defense, except for the common employer.

Judgment affirmed, with costs.

Barnard, P. J., concurs.  