Scott v. Delaware, L. & W. R.

he knew the danger of tamping dynamite with a steel rod, permitted a foreman to use such a rod in tamping dynamite in a pipe, the resulting explosion killing plaintiff’s intestate, who was working with the foreman. There can be no question of the propriety of the rule stated in the cases cited, but no such state of facts exists in the case now before us. It is true that there is some testimony to the effect that one ■of the workmen engaged in the construction of the tunnel through Bergen Hill, where the plaintiff was injured, called the attention of the defendant’s foreman to the fact that there was apparently a dangerous rock left after the blast of the previous day just before midnight, that the plaintiff had some conversation with this same foreman about a crack in the rock just before the accident happened, and that the foreman told him that it was all right and to go ahead, but it is very apparent from the testimony that the foreman did not admit that the situation was dangerous, and that he did not give any assurances to the plaintiff that the condition, which was known to him, would be changed.

[2] The plaintiff had had 24 years of experience as a driller in tunnel work. The work was being carried on in solid rock, and all of the conditions were as well known to the plaintiff as to the defendant's foreman, and there is nothing in the evidence from which the fair inference may be drawn that the plaintiff was acting under any coercive orders of the defendant. As was said in the case of O’Brien v. Buffalo Furnace Co., supra, the “statements of the foreman and the ■superintendent that there was no danger seem no more than declarations of opinion on their part which the deceased might accept or reject as he deemed wise,” and that is certainly as far as the testimony in this case goes. The plaintiff suggested that there was danger of the rock falling. He had as good an opportunity to know and judge of this danger as the foreman, and after a conversation with the latter, in which the latter merely expressed the opinion that the rock would not fall, the plaintiff went on with his work as directed. There is not a particle of evidence from which the inference could be properly drawn that the plaintiff was forbidden to make any further investigations, or that he was deprived of any means to ascertain the extent of the danger to which he was exposed. Counsel attempts to carry the impression that the plaintiff was urged to hurry up the work, but a reading of the testimony to which reference is made only goes to show that the foreman suggested that he wanted to get the work progressed so that it would be ready for those who were to come along on the following day, and there is nothing to show that the plaintiff was in any manner hindered from taking any and every precaution which the situation should have suggested to a man of his long experience in the same line of work. There is some testimony, to be sure, to the effect that the steam shovel was used to dig out projecting rocks of large size, and that the foreman alone had authority to direct the action of this steam shovel, but there is absolutely no evidence that the steam shovel had not been employed in fitting the place after the blast, ór that all proper effort had not been made to clean up the shattered rock. 'The most that can be said from the evidence is that there was a crack

in the rock, that it was not wholly severed from its connection with the solid rock in which the work was being carried forward, and that the defendant’s foreman, whose general competency is not questioned, expressed the opinion that the rock would! not fall. There is no evidence that the foreman was better qualified to judge of the situation than the plaintiff, no evidence that the plaintiff was under any compulsion to go to work, or that he had any assurance on the part of the defendant’s foreman that the situation would be changed. There was no failure of inspection, if it be conceded that inspection was one of the duties which the defendant owed.

[3] There was an inspection by the foreman, whose competency is not in issue, and the foreman reached the conclusion that the rock would not fall, and the plaintiff, with an equal right to determine'this question, seems to have agreed with him. Inspection does not amount to a guaranty of the judgment of the inspector. The master does not absolutely insure against errors in judgment of competent employés, and, unless such a rule is to be adopted, the plaintiff has failed to make out a case.

[4] Under the evidence in this case, it was the duty of the day gang to drag down loose rocks and to clear up the débris, and any negligence in the performance of this part of the work was clearly that of fellow servants. Henry v. Hudson & Manhattan R. R. Co., 201 N. Y. 140 , 142, 94 N. E. 623 .

[5] Work had progressed for at least five or six hours after the day gang had departed. The plaintiff and others had been using steam drills on the ledge from which this rock" fell, and the place afforded the plaintiff to perform his work was constantly undergoing changes in the progress of the undertaking, so that the question of a safe place in which to work is not involved in this case. Henry v. Hudson & Manhattan R. R. Co., supra.

[6] The master clearly had a right to intrust a competent foreman with the details of this work, and the fact that this foreman may have erred in judgment in respect to the danger to be apprehended from a condition known equally to the plaintiff is not evidence of negligence on the part of the defendant, and the case of Henry v. Hudson & Manhattan R. R. Co., supra, is not an authority for the submission of this case to the jury.

The rule of law applying to this case is to be found in King v. Ford, 121 App. Div. 404 , 106 N. Y. Supp. 50 , and in the opinion of this court on the former appeal, and is clearly to be distinguished from the case relied upon by the respondent, in that in the Henry Case, supra, the general superintendent of the defendant had his attention called to the situation and admitted that it looked dangerous, and promised to have the same remedied before nightfall. The plaintiff in that case went to work on the following day, without notice of the dangerous condition which had been produced by another class of servants, and which danger was known to the defendant’s general superintendent, who had promised to remedy the defect. The negligence in that case consisted of the failure on the part of the defendant to compel one class of serv

ants to properly perform their work, when failure to so perform the work, resulting in a concededly dangerous condition, was known to the defendant. Here the defendant’s foreman, acting in entire good faith and in the exercise of his best judgment, so far as the evidence discloses, had no reason to believe that there had been any failure in the performance of the duties of the day gang. He looked at the crack called to his attention by the plaintiff, and reached the conclusion that it was not dangerous. The plaintiff under no compulsion appears to have accepted that judgment, although he had had long experience in that line of work, and it is difficult to understand how the defendant could be held to be negligent in the matter without the plaintiff being equally negligent. He knew all that the foreman knew. The defendant had concededly furnished all of the tools and appliances necessary to the proper performance of the work, and there is not a suggestion that the foreman refused to do anything or that he refused to permit the plaintiff to do anything which might have been necessary to determine the question of safety. It is probably true that, if the defendant’s foreman had brought the steam shovel to the spot and made use of it, this particular accident might have been averted, but the question is whether the defendant, having furnished the steam shovel, a competent foreman, competent help, and other tools and appliances, is responsible for the failure of its foreman to do this act. Obviously it is not liable for this failure, because it owed no duty to warrant the judgment of-its foreman, who might lawfully be intrusted with the details of this work, and this is certainly true in this case where the plaintiff had been engaged right along in this work and was a man of large experience, and it does not appear that he made any request for the foreman to make use of the steam shovel or of any of the other appliances or tools which the defendant had concededly furnished. Unless we are to hold that the defendant is an insurer, there is no foundation for this judgment and it should be reversed.

The judgment and order appealed from should! be reversed and a new trial granted, costs to abide the event. All concur.