
    Germanio P. Baccelli, as Administrator, etc., of Taddeo Forte, Deceased, Appellant, v. New England Brick Company, Respondent.
    Third Department,
    May 4, 1910.
    Practice—dismissal at opening—master and servant—negligence — pleading—complaint—fall of clay bank—Employers’ Liability Act — “works'.”
    Ona motion to dismiss a complaint at the opening on the ground that it does not state a cause of action, the same question is presented as on a demurrer on like grounds. . ’ - • •
    Á’ complaint which alleges' that defendant while, its clay bank .was in a dangerous . condition Owing to an overhanging face of clay and earth having several fls- . súrésrunning- through it, directed plaintiff’s intestate to work at the foot of the bank; that the deceased, who had no knowledge of the danger, relying on defendant’s assuran.ce that it was safé, went to work and was killed by the fall " of the Overhanging face, and that death was caused by defendant’s negligence in failing to provide a safe place to work should not he dismissed on the opening.
    A clay bank is “works” within the meaning of the Employers’ Liability Act extending a master’s liability to defects in the condition of the ways, works and machinery used in his business.
    Appeal by the plaintiff, Germanió P. Baccelli, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 28th day of December, 1909, upon the dismissal of the complaint by direction of the court on the opening of the case at the Saratoga Trial Term.
    
      George R. Salisbury, for the appellant.
    
      Frederick Hulse, for the respondent.
   Sewell, J.:

Upon the trial of this action, after the plaintiit hau. opened his case, the court dismissed the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The complaint must, therefore, be treated as if it had been demurred to, and the sole question to be considered is whether it sufficiently states a cause of action.

The complaint alleges the incorporation of the defendant; that on the 15th day of July, 1908, the plaintiff’s intestate, a boy sixteen years old, was employed by the defendant as a day laborer in mining and taking clay from the defendant’s clay bank; that the defendant had caused large quantities of clay and earth to be excavated from the clay bed and had thereby constructed and maintained a vertical wall or side about fifty feet high; had near the top thereof an overhanging face of clay and earth which had several fissures running through it, and was in danger of falling any moment, “ and that thereafter and while the said sides or wall and' face was in such dangerous condition, the defendant negligently required and directed plaintiff’s intestate to work at the foot of said side or wall and directly under said overhanging face of clay and earth. That defendant was then and there informed of the dangerous condition of said wall and requested to remove said overhanging face, but negligently omitted so to do, and assured plaintiff’s intestate that it was safe for him to work thereunder; and that thereupon plaintiff’s intestate, having no' knowledge of such dangerous and unsafe condition, and relying upon said assurance of defendant, did enter said excavation and work at the foot of' said wall directly under said overhanging face of clay and earth iñ accordance with defendant’s directions aforesaid; that immediately * *' * the said overhanging face of clay and earth gave way and fell upon plaintiff’s intestate, and in consequence thereof, he was so injured and mangled and crushed that he died a few minutes thereafter.” The complaint also alleges; that the death of the deceased wás caused by the negligence of the defendant, in that the defendant failed to provide a'safe place to work, in. constructing and maintaining said overhanging face óf clay and earth, in assuring plaintiff’s intestate that it was safe to work thereunder and in omitting to inspect and- examine the wall and the overhanging face. It also alleges that the decedent was without fault or negligence and that on the 5th day of September, 1908, letters of administration upon his estate were duly issued and granted to the plaintiff.

All the allegations of fact being admitted, it stands conceded that the plaintiff’s intestate was put to work in a dangerous place, and that the defendant knew it was unsafe. I think this is enough to show that the defendant failed in its duty to the decedent, and if, as the complaint charges, the decedent was sent with the assurance that it was safe, and ignorant of the danger obeyed orders and met his death, it was error to hold as a.matter of law that the deceased was negligent, or that he appreciated or assumed the risk of the accident which occurred. This case is not like Citrone v. O'Rourke Engineering Const. Co. (188 N. Y. 339); Russell v. Lehigh Valley R. R. Co. (Id. 344), or Perry v. Rogers (157 id. 251), cited by respondent’s counsel. In each of these cases the servant was steadily making, or assisting in making, his own place in which to work. Here the servant had nothing to do with the preparation or creation of the overhanging wall or bank. ■ He took no part in the creation of this condition of danger. On the contrary, he began his work after the place had been prepared by the' master through other servants. I also think that the jury would have been justified in finding that the accident occurred from a cause which could have been foreseen and guarded against by the exercise of proper care and prudence on the part of the master. The fact that there were several fissures running through the overhanging bank and that it was likely to fall at unexpected times, imposed upon the defendant the duty of frequent inspection for the purpose of discovering appearances indicating immediate danger.

The complaint not only sets forth facts sufficient, to constitute a cause of action at common law but' a cause of action under the Employers’ Liability Act (Laws of 1902, chap. 600; since revised into Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14). That act extends the liability of the employer to defects in the condition of the ways, works or machinery connected with or used in his business, and that a clay bank is to be regarded as “ works ” within the meaning of the act, was expressly held by us in Palin v. Cary Brick Co. (133 App. Div. 483). It follows that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred; Cochrane, J., in result.

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