Riggs v. New York Tunnel Co.

The plaintiff has entered a judgment in an action for negligence on the verdict óf a'jury, and the defendant appeals from such judgment, and from an order denying defendant’s motion for a new trial. ■

The defendant was a subcontractor for the construction of the subways under the East River, and at the time of the accident, resulting in the death of plaintiff’s intestate, was engaged in excavating the tunnel through the rock bed of the river. The work was being done by “shifts” of workmen operating night and day, and the plaintiff’s intestate was an inspector appointed by the Board of Rapid Transit Commissioners to ascertain and report to his superiors at the end of each shift the progress of the work, and to measure the amount of the excavation, The excavating was done by drilling holes in the rock and blasting out the same, one-half of the heading at a time, above and below alternately. On the afternoon of the 30th of September, 1906, certain holes had been drilled in the heading. These holes were about 10 feet deep, in the lower half of the face, in two rows 6 feet apart, five holes in a row, converging until they almost met at their ends. These were termed “cut holes.” On either side of these two rows was a row of holes known as “rib holes,” or “helpers,” parallel to the axis of the tunnel. Outside of these “rib holes” were two rows of five holes each, known as “side holes”; the holes being about 2% or 3 inches in diameter. In these holes dynamite cartridges were placed, and imbedded in the dynamite were exploders, to which were

The plaintiff’s intestate clearly had a right to be in the tunnel at all times when his duties as an inspector required his presence. The •contract under which the work was being performed expressly provided for this, and the discharge of his duties of inspection, and of measuring up the amount of excavation accomplished, required that he should be, at some time, at the immediate point where the explosion occurred. At the time that the “butts” explosion was set off, the plaintiff’s intestate, with the employés of the defendant, was at a safe point. Neither he nor the other persons present moved from this position until the foreman announced: “All over; go in, boys, and blow out the smoke.” If it was proper for the defendant’s employés to be ordered forward into the tunnel where the explosion had just taken place, a question was fairly presented to the jury to determine whether the plaintiff’s intestate was in the exercise of reasonable care in going with them to the point where his duties called him, even though the place was filled with smoke, rendering it dark and unwholesome; and the only question remaining is whether the defendant was guilty of negligence in exposing the plaintiff’s intestate to the danger which he encountered by reason of the second explosion in the “butts,” for it seems to be conceded that none of the disconnected cartridges in the “rib holes” and “side holes” were exploded.

It is probably true, as held by the learned court at the trial, that this was not a case for the application of the doctrine of res ipsa loquitur. It was not a case where the mere happening of the accident imposed upon the defendant the duty of explaining it and showing freedom from negligence; but it was a case where, all the known facts

It is true, of course, that the plaintiff’s intestate was not an employe of the defendant, and he was not subject to the orders of the defendant’s foreman; but he was lawfully there, and his duties required him to be present for the purpose of measuring up the work accomplished, and the defendant owed him the duty o.f not misleading him through the assurances of its foreman, who tells us in his testimony that he was an experienced blaster, and held a certificate of competency for such work from the New York fire department. This is not the case of one who is lawfully upon the premises of one in the employment of another, who leaves the place where he is expected to perform his services and goes to some other part of the premises for his own purposes, as in the case of Flanagan v. Atlantic Asphalt Co., 37 App. Div. 476 , 56 N. Y. Supp. 18 , and analogous cases, but is the case of one who is on the premises for the purpose of inspecting the work being there performed for his employer, and who is lured into an unknown danger by the assurance that the special danger is over. The declaration of the foreman cannot be properly confined to the men actually employed. It was made generally to the “boys,” and the plaintiff’s intestate was there in connection with the work actually under way, and he was not at some remote point where he was not expected to be, or engaged in anything on his own account, but was going forward to -the point of inspection because the foreman had declared that it was all over, and he had no reason to expect any other dangers than those which were obvious to him through his experience in the work. He took the risks of fall over debris, or of detached rocks falling upon him; bpt he did not assume the risks of the defendant’s negligence in failing to properly explode the dynamite, which had been placed for the purpose of making the excavation which he was there to inspect.

The judgment and order appealed from should be affirmed, with costs.

' HIRSCHBERG, P. J., and WOODWARD, RICH, and MILLER, JJ., concur.

I dissent. The action is for negligence. The plaintiff has entered a judgment for damages upon the verdict of the jury. The defendant, as subcontractor of the contractor with the Board of Rapid Transit Commissioners for the construction of the subways under the East River, was excavating the tunnel through the rock bed of that river. The work was done night and day by “shifts” of workmen. The intestate of the plaintiff was an inspector appointed by the said board to ascertain and to report to his superiors at the end of each shift the progress of the work, and to measure the amount of excavation. This excavation was made by drilling and blasting out the rock, one-half of the heading at a time, above and below alternately. In the afternoon of September 30, 1906, with the -usual method employed by the defendant, certain holes had been drilled in the heading. These holes, about 10 feet deep, were in the lower half of the face, in two rows, 6 feet apart, of 5 holes each, converging until they almost met at their ends. They were termed “cut holes.” On each side of these two rows was a row of holes, known as “rib holes” or “helpers,” parallel to the axis of the tunnel. Outside of these “rib holes” there were two rows, of five holes each, known as “side holes.” The holes were about 2% to 3 inches in diameter. Dynamite cartridges had been placed in the holes. Imbedded in the dynamite were exploders, to which were attached wires connected together in chain, that was connected to a firing wire attached to an electric switch. It was not intended to explode all of these holes at once, and no connection for explosive purposes had been made with the “rib holes” or the “side holes.” The cartridges in the “cut holes” were discharged before the workmen went to supper. When they returned about 8 p. m., an examination showed that all of °the “cut. holes” had not been blown out entirely, but that the “butts” of the “cut holes” remained. These butts were reloaded, and the charges were again fired. The wires of the cartridges in the “side holes” and the “rib holes” still remained unconnected with the exploding mechanism. At this time the plaintiff’s intestate was in the tunnel, awaiting to make inspection. He was an intelligent man, who had taken his degree as a civil engineer. After various employments, he. passed through civil service into the'service of the city, and had been engaged for a year or more in this work.' His leisure hours were devoted to electrical work and scientific study. He must have understood well the character and the inherent'danger of' excavation by high explosives. After the firing of these “butts” the defendant’s foreman waited for a period described

I think that the verdict, which rests upon the negligence of the defendant, cannot stand. Undoubtedly the plaintiff’s intestate had the right as an inspector to be in the tunnel at all times when his duties of inspection required him to be there (Morris v. Brown, 111 N. Y. 318 , 18 N. E. 722 , 7 Am. St. Rep. 751 ), and, indeed, this was expressly provided in the contract. But at the time of the explosion he waste a place of safety. Had he remained there up to the time that the place where he went admitted of inspection, he would have been unhurt. He was injured because he chose to leave his place of safety to go forward into a place where he encountered the passing peril of the second explosion, at a time when it was utterly impossible even to-begin his work. The first explosion produced a dense volume of smoke and gas, so that the place was so black that it was impossible-for one to see anything. Ellegood, one of the workmen who went in,, says that he judged that the plaintiff’s intestate was opposite to him by the sound of his voice only; that he could not see him for the dense smoke. The workmen who went in carried candles, and even then could hardly see one another. These workmen were sent in teclear out the place by the application of compressed air. They had not cleared away the smoke and gas and fumes when the second explosion occurred. There is no contention that the place was even-partially free, so as to permit the intestate to begin his1 work, when the second explosion came. There was an invitation to the intestate to go to any place in this tunnel wherever his duties required him to-make an inspection and whenever an inspection could be made, and consequently there was the obligation of the defendant to him to exercise due care to keep such place at such times safe for the purposes of the inspection; but that invitation did not extend to places where the defendant could not suppose that in the course of his duty the inspector would go. Flanagan v. Atlantic Asphalt Co., 37 App. Div. 476 , 56 N. Y. Supp. 18 ; Cowen v. Kirby, 180 Mass. 504 , 62 N. E. 968 ; Pierce v. Whitcomb, 48 Vt. 127 , 21 Am. Rep. 120 ; Castorianov. Miller, 15 Misc. Rep. 254 , 36 N. Y. Supp. 419 . The question in such a case is: “Could the mischief have been reasonably foreseen ?” Hart v. Grennell, 122 N. Y., at page 375, 25 N. E., at page 355. Could the defendant reasonably foresee that an inspector, in the attempted discharge of his duties of estimate, and mensuration, would go into a place filled for a time with the fumes and .gases of a recent explosion, and of such ebon darkness that workmen who went with him,, for the sole purpose of clearing it, must carry candles, and even then failed to distinguish one another, although near at hand? There is not the slightest attempt to prove that at the time of the'second explosion the plaintiff met his injuries in the attempted discharge of his duty.

I think that the learned trial court was right in refusing to apply the doctrine of res ipsa loquitur to this case. Cosulich v. S. O. Co., 122 N. Y. 118 , 25 N. E. 259 , 19 Am. St. Rep. 475 . And I do not find in this record proof sufficient to sustain a verdict that the defendant was negligent in the method or manner of the work.

I think that the judgment should be reversed, and a new trial should be granted; costs to abide the event.