
    HAYES, Respondent, v. FAY, Appellant.
    (City Court of New York, General Term.
    October 26, 1897.)
    Action by William Hayes against H, James Fay.
    Daniel Daly, for appellant.
    William Stainton, for respondent.
   PER CURIAM.

The plaintiff, a laborer, was-employed by the defendant to assist in digging a trench for a sewer in this city, and while so engaged the wall of the earth surrounding the excavation fell into it, and plaintiff, who was in the trench, was injured. The law provides that all such excavations shall be properly guarded, so as to prevent the same from becoming dangerous to life and limb, and shall be sheet piled, when necessary to prevent the adjoining earth from caving in, by the person or persons causing the excavations to be made. Therefore it became the duty of the defendant to sheet pile the excavation in question, if necessary to prevent the same from becoming dangerous to life and limb. Whether or not it became necessary to use such piling in this instance was a question of fact for the jury to determine, and it was submitted to them, and they decided against the defendant. Therefore they declare that the defendant, in failing to provide such piling, was guilty of negligence. The jury also decided that the plaintiff was free from contributory negligence, and their findings were sustained by the evidence, and will not be disturbed by us; and therefore the judgment must be affirmed, with costs.  