Cullen v. Norton — 22 N.Y. St. Rep. 221

Majority

p. 221

Stacia Cullen, as Administratrix, etc., App’lt, v. Frederick O. Norton, Resp’t.

(Supreme Court, General Term, Third Department,

Filed March 16, 1889.)

Headnote

1. Negligence—When a question oe eact for the jury.

The plaintiff’s intestate was killed by the falling rock from an unexpected discharge of a blast in the defendant’s quarry while working-therein. Holes had been drilled in a particular rock and were filled, and. ■ all bat two exploded. The defendant’s foreman’s attention was called to it, and he said it would not pay to bother with it, and gave directions to-drill other holes around it, and pointed out the places. He then directed plaintiff’s intestate and other workmen to commence drilling holes upon the same breast of rock some fifteen or twenty feet below the unexploded, blast; and while thus engaged the blast suddenly exploded, and the rock thrown out fell upon plaintiff's intestate. H"eM,"that the case should have been submitted to the jury, and it was for them to say, in view of all the circumstances, whether tae exposure of plaintiff’s intestate was negligence on the part of the master.

2. Same—Risks taken by employee.

Held, that the plaintiff’s intestate took upon himself all the risks incident, to the dangerous character' of his service, except those that might befall him in consequence of his master’s negligence.

3. Same—Duty of master to furnish safe place for servant to-

WORK IN.

It is the duty of a master to furnish his servant a safe and proper place-in which to prosecute his work, and this duty continues to be his, no matter to what subordinate servant he delegates its performance.

4. Same—Contributory—When question for the jury.

It was urged that the deceased knew all about the facts and voluntarily assumed the risks, and thus by his contributory negligence, precluded recovery. Held, that this was a question for the jury.

Appeal from a judgment dismissing the complaint», directed by the court upon the close of the plaintiff’s testimony, upon a trial at the Ulster circuit, before a jury.

The plaintiff’s intestate, James Cullen, was killed on the 4th day of June, 1887, by the falling rock from an unexpected discharge of blast in the defendant’s cement quarry, in the town of Rosendale. Cullen was a quarry-man or-miner in the employ of the defendant. Eleven holes had been drilled and charged in a perpendicular breast of rock. They were fired at one time, but only ten exploded. Patrick Dolan was defendant’s foreman in charge. His attention was called to the unexploded blast, and the boss-blaster said “fire it.” Dolan remarked that it would not pay to bother with it, and he gave directions to drill the other holes around it and near it, and pointed out the places. He then directed Cullen and other workmen to commence drilling upon the same breast of rock, about fifteen or twenty feet beneath the unexploded blast. Air-drills were used, by Cullen and by the men above him. While the men were drilling .above and Cullen below, the;

p. 222

unexploded blast unexpectedly exploded, and the rock thrown out fell upon Cullen and killed him.

D. W. Dewitt, for app’lt; J. N. Fiero, for resp’t.

—Upon the evidence, we think this case ought to have been submitted to the jury. The plaintiff’s intestate took upon himself all the risks incident to the dangérous character of his service, except those that might befall Turn in consequence of his master’s negligence. Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y., 368 . One of the •duties of the master was to furnish his servant a' safe and proper place in which to prosecute his work. Id. This •duty continued to be the master’s no matter to what subordinate servant he delegated its performance. Id.

The defendant’s foreman was intrusted with its perform■ance and hence stood in place of and represented the master in assigning the servant to his fatal place of labor. If it was negligence to assign him to this place, the negligence was the master’s.

This place was upon the bench of the breast of perpendicular wall of rock fifteen or twenty feet beneath the undischarged blast, within two feet of which two other workmen were engaged in drilling holes. It may be that the best method of treating the undischarged blast was to drill holes around it, charge and explode them and thereby blow out the rock which held it. A mistake in that respect might be merely a mistake in judgment as to the best method of acting in a dangerous situation, and not at all attributable to negligence.

But to place the servant at work directly underneath the unexploded blast while other servants were drilling the rock within two feet of it exposed him to the danger of injury from the falling pieces of rock if by any chance the blast should be accidently exploded.

It would be for the jury to say in view of all the circumstances whether such exposure was- negligence on the part of the master.

In Turner v. Chateaugay Ore Co. (21 Week. Dig., 40), decided by us, a hole had been charged and fired, but the explosion did not perform the service expected, and defendant’s foreman told the plaintiff to drill it deeper. The fact was that in the discharge some of the explosive material in the hole remained unexploded, and as the plaintiff was engaged in drilling the hole deeper, this material exploded and injured him. The risk was incident to the work, and would be great in any place and under any master. A sharp inspection of the hole before commencing to drill it, would be the ordinary duty of the workman. If it had been made by the foreman he would simply be doing servant’ s work, and his negligence would be the work of a fellow servant.

p. 223

Loughlin v. State of New York ( 105 N. Y., 159 ; 6 N. Y. State Rep., 826) is cited. There the captain of the state’s-boat and the plaintiff and other workmen, under the direction of the captain, were all digging clay from a bank and. loading it upon the boat. In the prosecution of this work, the captain first loosened the overhanging earth and then set the plaintiff to digging underneath. The loosened earth fell upon the plaintiff and injured him. The court' held they were all servants together, doing servants’ work,, and though the captain was in charge, yet he was only in-charge of the details of servants’ service.

So it was in Crispin v. Babbitt ( 81 N. Y., 516 ), McCosker v. Long Island R. R. Co. ( 81 N. Y., 77 ), and in Scott v. Sweeney ( 31 Hun, 292 ) decided by us. Here the plaintiff’s intestate had nothing to do with the unexploded hole; "he was not co-operating with respect to it, but was, by the direction of the foreman, set to work to make new holes fifteen or twenty feet beneath it. The foreman was in no way working with him or participating in the execution of any of the details of his work. The danger to which he was exposed was not incident to his work, but wholly incident to the place where he was assigned to do it. Here the defendant was in Europe and his foreman represented him. When the foreman told the plaintiff’s intestate to go to-work in this place of danger, he spoke with the authority of' the master. He might have assigned him a place of labor remote from the danger of this unexploded blast. He substituted this place for the safe places at his command.

It is urged that the deceased knew all about the facts,, and voluntarily assumed the risks, and thus by his contributory negligence precluded recovery. This is for the jury. When a servant does not assert his judgment in. opposition to the supposed better or stronger will of his master, the law usually allows a jury to determine whether he voluntarily assumed the risks, or acted in reliance upon the judgment of his master, or out of a constrained acquiescence in the rule of obedience which his relation as servant imposes. Hawley v. Northern R. R. Co., 82 N. Y., 370 .

The judgment is reversed, new trial granted, costs to-abide the event.

Learned, P. J., and Ingalls, J., concur.