Plaintiff sought by his proof to establish a liability against the company, defendant, upon two grounds.
First, because Hogan was the company itself in respect to the act out of which the action resulted; and, second, because Hogan was unskillful, and not a proper overseer.
As the case stood at the close of the plaintiff’s evidence, when a nonsuit was ordered, the plaintiff was entitled to go to the jury upon both grounds. It was proven that the work was done under' Hogan’s direction; that he was superintendent of defendant; that *28he dug a trench so as to expose a gas-pipe; that he missed the pip& and went some two and a half feet south of it; that to avoid opening a breach directly over the pipe Hogan directed the men to excavate north from the trench to the pipe, so as to expose it, and to-throw the dirt upon the top o'f the bank over the pipe. The overhanging bank was weakened of its support from below and was loaded with the weight of the dirt taken out. In this state-the plaintiff, whose business it was to examine the pipes, was, while under this overhanging board making such examination, overwhelmed by the falling bank and greatly injured. Under this-proof Hogan was the defendant. (Corcoran v. Holbrook, 59 N. Y., 517.)
It was for the jury to say if the work was negligently done. It. seems plain that it was. It was for the jury to say if Hogan was a. skillful overseer. All evidence tending to show want of skill wasexeluded, except the fact of the manner of digging the trench. The jury might have found on that alone that Hogan was wanting in skill. It was not a matter of law, that plaintiff knew of the danger. The jury might have so found; but they might have found him justified in trusting to the skill of the overseer.
Judgment reversed and new trial granted, costs to abide event.
Gilbert, J., concurred. Present — Barnard, P. J., Gilbert and Dykman, JJ.Judgment reversed and new trial granted, costs to abide event.