The defendant had the right to build upon this slope of the high bank of the Niagara river and to utilize the otherwise worthless piece of land. It had the right to construct the penstock from the top of the high bank to the floor of its power house and to excavate through the loose materials on the slope a trench from the surface of the slope to the solid rock wide enough and deep enough to place a suitable penstock therein.
In the course of the body of the charge the learned trial judge said: “ The counsel for the defendant in his address to you stated that he did not know just what specific duty the court would call your attention to as incumbent upon this defendant to perform. I do not call your attention to any specific duty, gentlemen. I do not say that there was any specific obligation imposed upon this defendant.”'
After the body of the charge was delivered the learned counsel for the appellant made the following request: “ I ask the court to-charge the jury that there must be some specific duty and a violation or neglect of it on the part of the defendant, and the jury must find such a specific duty and a violation or neglect of it before the defendant can be charged with negligence.”
The request was denied and an exception was taken.
Following that the further request was made to the court “ to charge the jury that there is no evidence of any specific fact whereby negligence can be charged against the defendant.” The request was. denied and an exception was taken.
The charge as delivered was' not definite, certain and specific so as to inform the jury what act had been performed by the defendant or what omission had been made by the defendant which was, in the eye of the law, negligent. When the trial judge refused the requests. *97made to make a definite and specific charge of the act which was negligent on the part of the defendant, we think it committed an error. He left the jury to surmise or guess upon the whole evidence that the defendant had been guilty without being required to find any specific act of negligence or omission.
In Harmon v. The Washington & Georgetown R. R. Co. (18 D. C. 255; S. C., 2 Am. Neg. Cas. 302) it was said that an instruction which leaves the question of negligence to the jury without any guidance, or giving them any rule for determining it, is erroneous and should not be granted.
In Harley v. Buffalo Car Mfg. Co. (142 N. Y. 31) it was said: ' “ The master does not guarantee the safety of his servants. He is not bound to furnish them an absolutely safe place to work in, but is bound simply to use reasonable care and prudence in providing such a place. * * * It is culpable negligence which makes the master liable, not a mere error of judgment.”
In the course of the opinion delivered in Perry v. Rogers (157 N. Y. 251) it was said : “ The law is reasonable and does not require impossibilities, and work along any part of the face of this precipice of one hundred feet in height could not, in the very nature of things, be in a safe place.” The intestate had been in and about the work a sufficient length of time to become conscious of all the dangers incident to the work that was being carried on.
We think the instruction was too vague and the refusal to make it definite and certain was error, and that the exceptions to which we have referred present error requiring us to order a new trial.
All concurred.
Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.