Opinion
October 18, 1907.
Allan E. Brosmith, for the appellant.
George F. Hickey [ William E. Stewart with him on the brief], for the respondent.
Present — JENKS, HOOKER, GAYNOR, RICH and MILLER, JJ.
The action is by servant against master for negligence. The plaintiff, while at work as a bricklayer in a building in the course of construction, was struck by a falling thing from the upper part of the building and injured. The alleged negligence is that the master failed to furnish a safe and proper place for the servant to work in; that the servant was put at work in a place not properly protected against the fall of such things. The Municipal Court was requested to charge the jury that the master is never the insurer of the safety of a workman on a building, and the court declined so to charge under exception. While the request was general, we cannot say that it was not germane, especially in view of the fact that the court had already charged the jury that it was the duty of the master to give the employee a safe place to work in. We cannot say that the effect of such a charge was not to instruct the jury that the master was held to a higher rule of liability than that imposed upon him by law. For these reasons we think the judgment must be reversed and a new trial ordered, costs to abide the event.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.