Opinion
Argued March 11, 1919
Decided April 8, 1919
Achille J. Oishei-Hoschek and Charles Oishei for appellant.
Arthur R. Wing and John J. Haley for respondent.
This is an action under the Labor Law (Consol. Laws, chap. 31) by workman against employer.
On September 22, 1913, the plaintiff was engaged in excavating for the foundations of a building. His hand was crushed by a stone which fell out of the wall as he worked. He had noticed cracks about the stone, and had called them to the attention of his foreman. They were two and a half or three inches wide. The foreman told him that there was no danger, and to go on with the work. Simple tests would have shown the insecurity of the stone. The foreman made none. A half hour after the assurance of safety the stone fell.
Those are the facts according to the plaintiff's evidence. Many of them are disputed, but the jury accepted the plaintiff's version. The Appellate Division reversed upon the ground that the foreman's conduct was evidence, not of negligence, but at the utmost of error of judgment. We do not share that view. Error of judgment there may have been, but error is not inconsistent with fault. The standard of diligence exacted is that of the typical prudent man. The individual must answer for the consequences when he falls below that norm ( Maguire v. Barrett, 223 N.Y. 49, 54, 55; Mertz v. Conn. Co., 217 N.Y. 475, 477; Williams v. Hays, 143 N.Y. 442, 454). A jury might fairly find that this foreman, however honest his error, had failed in his duty of reasonable inspection. Liability has heretofore been adjudged in other cases upon facts substantially the same ( Bitolio v. Bradley Contracting Co., 222 N.Y. 553; Campullu v. Bradley Contracting Co., 222 N.Y. 634; O'Rourke v. McMullen-Snare Triest, Inc., 222 N.Y. 719; Mullahey v. Dravo Contracting Co., 211 N.Y. 583).
We cannot say that the plaintiff is chargeable as a matter of law with contributory negligence. He tells us that he relied upon the judgment of his superior, who had been engaged in the business for upwards of sixteen years. Whether reliance was reasonable, was a question for the jury ( Rice v. Eureka Paper Co., 174 N.Y. 385; Daley v. Schaaf, 28 Hun, 314; Seaboard Air Line Railway v. Horton, 239 U.S. 595, 600; McCabe Steen Constr. Co. v. Wilson, 209 U.S. 275, 282).
The order of the Appellate Division should be reversed and the judgment of the Trial Term affirmed, with costs in the Appellate Division and in this court.
HISCOCK, Ch. J., CHASE, HOGAN, POUND, McLAUGHLIN and ANDREWS, JJ., concur.
Order reversed, etc.