I think the judgment should be reversed. The undisputed facts are that the defendant was engaged in laying a pipe in a trench in Fifth avenue, in the city of New York. The trench had been dug to a depth of about nine or ten feet and was about six feet wide. The plaintiff’s intestate was a pipeman, having nothing to do with the digging of the trench, and whose duty it was to lay the pipe which was to be put into it. In September, 1896, while engaged in that work, the trench fell in. Several men at work within it were caught, and the plaintiff’s intestate killed by the falling earth. It was "undisputed also that there was no sheet piling in the trench, and that there was an engine and boiler which stood over it. There was *275evidence from which the jury might have found that the sides of the trench were nearly perpendicular; that there was paving stone on the surface of the street; that underneath was gravel mixed, and not regular hard pan, but of differing quality and in different layers, and veins from the top to the bottom; that the earth was softer at the bottom than at the top, and that while hard and compact at the top, the sides were of loose earth from six inches to a foot from the bottom, and that the trench was not braced. The jury might also have found from the testimony that the engine was almost immediately over the place where this man was at work and where the falling in of the earth occurred, and that the engine had been working the morning before the accident. Whether the engine stood upon planks placed across the trench was in dispute, and the jury might have found that it did not. There was evidence to the effect that at the bottom of the trench it was moist, and after the accident happened it was discovered that a water pipe, laid near the sides of the trench, had sweated, and the water had exuded into the trench. The defendant admitted that he knew that there were water j>ipes near the trench; that they were apt to sweat or leak, and that the tendency of this was to loosen the soil. It further appeared that, four or five days prior to the accident, blasting had been carried on but a short distance from the place of the accident, and that the tendency of this was to disintegrate the soil, particularly hard soil such as the defendant claimed that in the trench to be. There was also moisture in the trench from the drip of the engine. The testimony as to the condition of the trench, the precise location of the engine, whether or not the engine had been working on the morning of the accident, and, if so, to what extent, and as to the precise nature of the soil from the top to the bottom, was disputed. The defendant gave evidence tending to show that though there was no sheet piling, yet the nature of the soil was such that it had not been necessary to use that means of protection for the men. This is a general review of the testimony presented on the trial.
The motion to dismiss the complaint was made upon the ground that the defendant’s evidence established the fact that the defendant had furnished a reasonably safe place for the men to work, and showed that he had discharged his full duty as required by law in every particular. It seems to me, upon the whole case, that the plain*276tiff had made out a case for the jury in regard to that matter. That the accident occurred was not questioned; and they might have found that the earth which supported the trench at the bottom and sides was such that it might fall in, and that for some reason it had become moist, so that it was less firm than it naturally was, and that this defect might have been discovered upon slight inspection. Upon those facts the jury might have predicated the negligence of the defendant.
The case of Del Sejnore v. Hallinan (153 N. Y. 274) is not, I think, controlling on this question. It simply lays down the general rule, which no one disputes, that it is the duty of the master to guard his servant against such accidents in performing his work, as, by the exercise of reasonable care, can be foreseen as liable to occur; but he is not liable for a personal injury sustained by the servant through an accident which prudent men, proceeding with reasonable caution, would not have ordinarily foreseen or anticipated. The jury might have found from the facts whether the accident occurred by reason of a cause which a prudent man might have foreseen and anticipated or not. In this case, I think, they might have so found, and for that reason the question should have been presented to them.
Barrett, J., concurred.
Judgment affirmed, with costs.