Cullen v. Norton — 24 N.Y. St. Rep. 103

Majority

p. 103

Stacia Cullen, as Administratrix, etc., v. Frederick O. Norton.

(Supreme Court, General Term, Third Department,

Filed May 27, 1889.)

Headnote

Negligence—Fellow servants—Question eor the jury.

Where, in an action brought to recover for alleged negligence of de* fendant, resulting in death of plaintiff's intestate, who was employed by defendant in his quarry, the evidence was conflicting as to whether the explosion, which caused the injury, resulted solely from the negligence of defendant’s workmen employed in drilling near the unexploded hole, or from the concussion caused by the drilling, irrespective of any negligence of a workman, or from the sparks flying from the steam drill, Held, that it was for the jury to say whether the negligence of the workmen was the sole cause of the explosion.

Motion for reargument. For statement of facts see 22 N. Y. State Rep., 221.

J. N. Fiero, for motion; D. M. De Witt, opposed. ¡

Hussey v. Coger (21 N. Y. State Rep., 848) is a case in. which the place where the plaintiff’s intestate worked was made dangerous only because of the negligence of his fellow-workman above him. The hatch fell because a workman, who ought to have taken hold of one corner of it neglected to do so. The injury, therefore, resulted primarily from the negligence of fellow-workmen. In the case at bar, the explosion may have resulted solely from the negligence of the defendant’s workmen employed in drilling near the unexploded hole, or from the concussion caused by the drilling, irrespective of any negligence of a workman, or from the sparks flying

p. 104

from the steam drill. It would be for the jury to say whether the negligence of the workmen was the sole cause of the explosion.

In Roach v. Jackson Architectural Works (14 N. Y. State Rep., 583) the injury resulted from the careless manner in which a shoe under the derrick was placed. The act of placing it was servants’ work, no matter by whom performed. Here the place where the plaintiff’s intestate was put to work was dangerous, not only because the servants higher up on the wall might be careless, but also in spite of their utmost care; and as the jury might have found the injury was due to the place, and not to the carelessness of the workmen, the case should have been submitted to them.

The defendant urges that he cannot safely appeal to the court of-appeals. We, of course, cannot state what the practice of that court is. But as we simply hold that the case ought to have been submitted to the jury, we decide no question of fact, and’an appeal to the court of appeals will be unembarrassed by such a question. Beargument denied.

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