
    Bridget Boyle, as Administratrix, etc., of John Boyle, Deceased, Respondent, v. Degnon-McLean Construction Company, Appellant.
    
      ¿Negligence — a fall'through an opening in a trestle left uncovered and unlighied — contributory negligence — assumption of risk — temporcM'y forgetfulness of a danger.
    
    In an action to recover damages resulting from the death of the plaintiff’s intestate, evidence that the defendant, a construction company, maintained an elevated trestle in which there was an opening seven feet long and four feet wide, used for dumping coal into coal bunkers, and that although it provided, planks with which to cover the opening, it did not, so far as appeared, establish or enforce any rule requiring it to be covered at night, and that on a night when it" was not covered and the trestle was insufficiently lighted the defendant placed the intestate, who was its employee, at work seven feet from the opening with the result that he fell through it and was killed, is sufficient to warrant the jury in finding that the defendant was guilty of negligence.
    The fact that the intestate worked for one day in plain sight of the opening does not establish, as a matter of law, contributory negligence on his part or show , that he voluntarily assumed the risk of the opening being left uncovered at night.
    Temporary forgetfulness by an employee of a known danger created by the negligence of his master does not necessarily bar a recovery by the employee against the master, for an injury sustained by him in consequence thereof.
    Appeal by the defendant, the Degnon-McLean Oonstructio'n Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of June, 1899, upon the verdict" of a jury for $7,500, and also from an order entered in said clerk’s office on the 19th day of July, 1899, denying the defendant’s motion for a new trial made upon the minutes. "
    
      L. Sidney Carrere [George O. Bedington with him on the brief], for the appellant.
    
      Edmund D. Hennessy, for the respondent.
   Willard Bartlett,. J. :

There is no difficulty whatever in sustaining the finding that the-defendant corporation was negligent. It provided its servant with, a place in which to do his work, which was not merely unsafe, but-which was extremely dangerous. This was- an elevated trestle, in., the upper surface of which was a hole about seven feet long by four feet in width, and distant- not more than seven feet from that portion' of the structure upon which the deceased was engaged in loading lumber on a car. The existence of such an aperture-through which a fall might prove fatal (as it actually did in the case.at bar), was a peril to which the defendant could not properly expose-its servants at night in the absence of light sufficient to disclose its-presence.

But it is argued that the deceased must have become aware of" the existence of the hole during the one day that he worked in plain, sight of it, before the night when he was killed, and that lie must-also then have learned that it was uncovered. Thus it is said that, he voluntarily assumed whatever risk there was in. the situation by-consenting to work there in the dark ;■ and, furthermore, that he-must be deemed chargeable with contributory negligence in not;' avoiding a known danger.

We think it was ju’operly left to the jury to determine precisely what risk the deceased assumed and whether, under all the circumstances, any fault of his own contributed to. the accident.

The hole was used for dumping coal into a- coal bunker. The-general superintendent of the defendant corporation testified that, there was loose planking about it, to be placed over it asa covering,, and that he had given instructions to cover it up to the foreman .of" the river gang, who usually unloaded the coal. It did not appear,, however, that the corporation had established or habitually enforced, any rule or regulation ta prevent the hole from, being left uncovered at night. As the plaintiff’s husband was killed by his fall through, it, -we cannot know from him what degree of cafe he exercised;; but. the absence of contributory negligence may nevertheless be-inferred from the circumstances of an accident even, when them jured person is unable to give any account of the manner in which it occurred. (Noble v. N. Y. C. & H. R. R. R. Co., 20 App. Div.. 40; affd, 161 N. Y. 620.)

Assuming, as is argued by the appellant, that the deceased did see the hole during the daytime, it may fairly be presumed that he perceived what it was for and inferred that it would be covered in the night time, when not in use, and when men were called upon to-work near it without enough light to enable them to discern its precise situation and avoid it. Even if he momentarily forgot its presence, he would not for that reason be chargeable with contributory. negligence as a matter of law. (Bassett v. Fish, 15 N. Y. 303.) Mr. Beach cites this case in support of the statement that where one knowing a danger temporarily forgets it, and suffers in consequence, his forgetfulness will not avail him as an excuse. (Beach Contrib. Feg. [3d ed.] § 31.) .The language of the Court-of Appeals, however, does not sustain that proposition. On the contrary, the decision plainly imports that such temporary forgeL fulness does not necessarily bar a recovery. The plaintiff in the Bassett case was a school teacher, who slipped thrqugh a hole in the floor which the school trustees had negligently allowed to get out of repair. She admitted having seen the hole there weeks before but Judge Folgeé said that she might, without fault, have given that remembrance little heed; for she might well suppose that the defect had been repaired. “ And if she did not recollect it,” he adds, “ it was not plainly negligence to have forgottén it, for she might well unburden her mind of it, because of her right to rest upon the assumption that her employer would do its duty to her and to-others, and make prompt repair, where repair was so needful.” The same reason applies to the circumstances of the case at bar. • and it cannot be affirmed as a legal conclusion that the deceased was at fault for not assuming that the hole was still uncovered.

The appellant cites Morgan v. Village of Penn Van (42 App_ Div. 582) in support of the proposition that it is no excuse that the deceased may have forgotten the existence of the hole. In the testimony of the plaintiff in that case, however, as set out in the opinion, we find no suggestion of any forgetfulness on his part. He expressly states that he knew he was coming to the place where the heaps of dirt were with which his carriage collided.- In O'Dwyer v. O'Brien (13 App. Div. 510) the plaintiff was in jured by tripping over a loose board while carrying a large basketful of clothes which obstructed her vision so far as her pathway was concerned, and while she was making no effort,to observe whether her footing was safe but was gazing across the street. These circumstances present no analogy to the facts of the present case, nor do those which were held to render the injured persons chargeable with contributory negligence in Kane v. Whitaker (33 App. Div. 416), or Williams v. Delaware, Lackawanna & Western R. R. Co. (116 N. Y. 628).

The evidence justified the jury in finding that the trestle through which the deceased fell was insufficiently lighted at the time of the accident. There appears to have been an arc lamp'on a mast south of the trestle, but it was not lighted that night until after the plaintiff’s husband had fallen through the hole and incurred the injury which caused.his death. The defendant employed an electrician to look after the lamps, whose duty It was to turn on and turn off the electric lights, when notified to' do so. “ It was my business,” he saiej, when I was notified by the foreman or when somebody else told me ; generally the watchman at the office, he often turned it oni * * * I was not notified that night to turn it on.” The learned trial judge charged the jury that while it was the duty of the defendant to provide lamps and a proper system of .lighting, the mere lighting was the duty of a fellow-s'ervant for wdiich the defendant would not be liable. Under the circumstances of the present case it seems quite doubtful whether the electrician was to be regarded as a fellow-servant of the deceased so as to relieve the defendant from the effect of his failure to furnish the light which was necessary to preserve the safety of the workmen on the trestle. It is not necessary, however^ to pass upon this question, for we think it is enough to charge the defendant with negligence that the hole ■ was left uncovered in proximity to the place where the plaintiff’s husband was put at work in the dark.

Complaint is made of the.amount of the verdict as excessive, but it is not so plainly too much as to warrant our interference with the judgment on that account.

The judgment and order should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.  