Overbaugh v. Wieber

Citations

• 106 A.D. 283
• 94 N.Y.S. 644

Syllabus

<p>Negligence — injury to a workman.from a ditch caring in— contributory negligence — assumption of risk.</p> <p>In an action brought to recover damages resulting from the death of the plaintiff’s intestate, it appeared that the defendants were experienced contractors who had constructed a sewer trench about nine feet in depth and three' feet wide, the sides of which were not braced or sheathed; that on August 21, 1904, a portion of the side of the trench caved in; that on August twenty-third, while the intestate and other workmen in the employ of the defendants were removing the debris from the trench another cave-in occurred which resulted in the death of the intestate. The intestate had been working for the defendants only about two hours when the accident occurred -and he had never before been engaged in similar work.</p> <p>Held, that although it appeared that the intestate must have been aware of the previous cave-in and although, prior to the accident, small quantities of dirt were continually falling upon him, it could not be said that he was guilty of • contributory negligence, as matter of law, in continuing to work in the trench;</p> <p>That the jury might properly find that the intestate’s knowledge of the dangers of the situation was not equal to that of the defendants, and that the intestate did not assume the risk of the accident.</p>