
    Mary Haskins, Adm’rx, Resp’t, v. James Stewart and George Stewart, App’lts.
    
      (Supreme Court, General Term, Second Department
    
    
      Filed July 18, 1890.)
    
    Master and Servant — Negligence.
    Plaintiff’s intestate, while working for defendants in constructing a sewer, was killed by the caving in of the bank. It was shown that the bracing was similar to that used in constructing other sewers, was approved by the city engineer and had proved successful for half a mile of the work. It was also shown that the accident was caused by the bursting of a water main running parallel with the sewer and within two feet thereof at that point. Held, that this was not one cf the calamities which the master was bound to anticipate and guard against and that defendants were not shown to be guilty of actionable negligence.
    Appeal from judgment in favor of plaintiff for $5,841,98, entered upon verdict.
    Action to recover damages for the death of plaintiff’s intestate, alleged to have been caused by defendants’ negligence. While intestate, who was an employee of defendants, was engaged in ex-cavating a trench for a sewer sixteen feet deep the sides of the .sewer caved in and he was thereby buried and killed.
    
      Jooseph F. Daly, for app’lts; Martin J. Keogh, for resp’t.
   Barnard, P. J.

The case does not show that the defendants were guilty of actionable negligence. They were contractors for the building of a sewer in Yonkers. The plaintiffs intestate was an employee of the defendants in the construction of the work. The sewer excavation at the place of the accident which caused the intestate's death was a little short of sixteen feet in depth and five feet wide at the top. The excavation was protected by planks placed upright against the side; there were placed cross pieces four feet apart between the planks. The upright planks were placed at a distance of eight feet from each other; along the top of the cut there were placed from three to six planks, horizontally, inside the uprights. Under this method of protection over half a mile ■of the sewer had been safely constructed. When within thirty-.five feet of the end a water pipe, which had been placed in the street parallel with the sewer and within two feet or thereabouts from the edge of the trench, bursted. There was under the public water main a small private main placed there before the public one was put in. The accident was caused by one of these pipes suddenly bursting, and filling the trench with water and thereby causing a caving in of the banks. It was a question as to which of these pipes caused the accident.

The defendants had laid the public water pipe, but the case does not show that they knew of the existence of the smaller one. The public pipe could be laid without disclosing the smaller one under it. The bursting of either pipe was not one of the calamities which the contractor was bound to anticipate and guard against. There was nothing in the fact that a water pipe was within two feet of the sewer which called for an additional safeguard against caving in. The bracing used was- similar to that commonly used in constructing sewers with conditions similar to this. It was approved by the city engineer, and it did not give way until an unforeseen, an unexpected bursting of the water pipe in no way connected with the defendants’ employment. This pipe was along the whole excavation, and sometimes as near as it was when it broke and filled the trench with water. It appeared that the city water pipe at the place of fracture was defective. This fact was unknown to any one before the accident. The case seems, therefore,, to be controlled by Burke v. Witherbee, 98 N. Y., 562. The protection was safe, judging by a safe use until the accident happened, and then the cause was outside of the danger which could be reasonably expected by the most careful of masters. It is not necessary, therefore, to examine the question whether the accident was within the risks of the employment or the exception taken on the trial. We think the action failed upon the question of the negligence of the master.

There should, therefore, be a new trial granted, with costs tc abide event.

Dykman and Pratt, JJ., concur.  