Cullen v. Norton — 29 N.Y. St. Rep. 700

Majority

p. 700

Stacia Cullen Adm’rx, Resp’t, v. Frederick O. Norton, App’lt.

(Supreme Court, General Term, Third Department,

Filed February 24, 1890.)

Headnote

1. Master and servant—Negligence.

Defendant’s foreman, with knowledge that one of the holes of a blast in a perpendicular rock was unexploded, put plaintiff’s intestate at work beneath it, and others to drill holes near it. Held, that the place was an unsafe one by reason of possible carelessness of fellow workmen; from percussion and from, sparks flying from the drills, and defendant is liable for the act of the foreman in placing plaintiff’s intestate at work there.

2. Same—Charge.

The court charged to find for defendant if the explosion was caused by the carelessness of fellow workmen, but not if it occurred from the other causes, unless intestate was guilty of contributory negligence. Held, that this was as favorable to defendant as he was entitled to demand.

Appeal from a judgment in favor of the' plaintiff, entered upon a verdict upon trial at the Ulster circuit.

J. N. Fiero, for app’lt; Wm. Lounsbery, for resp’t.

The facts are not materially different from those presented upon the former appeal. 22 N. Y. State Rep., 221; 24 id., 103. "We then held that the plaintiff’s intestate took upon himself all the risks incident to the dangerous character of his service, except those which might befall him in consequence of his master’s negligence. He took the risks of every danger arising from the nature of his employment and from the negligence of his fellow servants. We held that it was one of the duties of his master, the only duty material to be considered in the case, to furnish him a safe and proper place in which to prosecute his work. That since this duty belonged to the master, the foreman in

p. 701

■charge of the servants in this part of the work, in assigning the intestate to his place of labor, was performing the duties of the master, and therefore represented him; that it was a question of fact for the jury whether the death of the intestate was attributable to the negligence of his master in not assigning him to a proper .and safe place of labor, or whether it was attributable to the negligence of his fellow servants or to his own. The case has been '.retried upon this theory and resulted in a verdict for the plaintiff.

We think the facts as now presented require an affirmance of "the judgment. It may be conceded that the distinction between ■the dangerous nature of the employment and the dangerous nature of the place of employment is not always clearly perceived.

We therefore hazard an illustration: Suppose the place is a rock in a mine, and the work is the picking out of explosive powder from the hole of an undischarged blast in the rock. The place, .aside from the nature of this particular work, is safe, but the work -is unsafe and dangerous in the extreme. If an explosion results from the work and injures the servant, the injury is plainly attributable to the work and not to the place. Bat suppose while ■engaged in this dangerous work an overhanging rock, gradually becoming loosened, now falls upon the servant and kills him, his ■death is attributable to the place, and the inquiry would be pertinent whether his master was negligent in assigning him to such a place. Again, suppose the workman is extracting the powder from the blast, as in the first supposition, and the danger is incident only to the nature of his work, and the master, with knowledge of the situation, directs a second workman to drill a new hole in the same rock near to the one upon which the first workman is employed. Clearly, with respect to the second workman, the place is a dangerous one, wholly irrespective of his own employment. As is repeated in Hussey v. Coger, 112 N. Y., 614 ; 21 N. Y. State Rep., 848, the master owes the duty to his servants to furnish a safe and proper place in which to prosecute his work, .and to exercise care and prudence in the protection of his servants from the known and inherent dangers of the situation.

In the case at bar the foreman of the defendant, knowing that ■one of the holes of the blast in the perpendicular wall of rock fifteen feet above the bottom was not exploded in the discharge of the other holes near it, placed workmen to drill new holes near 'the unexploded one, and then placed the intestate to drilling other holes near the bottom of the wall and underneath the upper workmen. The unexploded blast exploded and the fragments of rock falling from it killed plaintiff’s intestate.

The place ryas unsafe for three reasons: First, the possible carelessness of the workmen drilling near the unexploded blast; second, from percussion or concussion; third, from sj)arks flying from the ■drills near it. The jury were instructed to find for the defendant if the explosion occurred from the first cause, but not if from the second or third, unless the intestate was chargeable with contributory negligence.

This was as favorable to the defendant as he was entitled to demand. The rule requiring the master to protect his servant from

p. 702

the known and inherent dangers of the situation includes those reasonably to be apprehended. Because the carelessness of fellow servants in such a situation is not to be reasonably apprehended the master may escape the consequences arising from that peril. But if it was reasonable to apprehend a premature explosion from some other cause, then the master’s care and prudence should have protected the intestate from it; the foreman was his only representative to act for him, and the jury have found that he not only failed to exercise that care, but actually did with respect to the intestate what ordinary care should have restrained him from doing. Leonard v. Collins, 70 N. Y., 90 .

In Hussey v. Coger, supra, the foreman was engaged in the work which resulted in killing a workman underneath.

The injury was attributable to the negligence of fellow workmen and not to causes peculiar to the place of work independently of such negligence.

Judgment affirmed, with costs.

Learned, í?. J., and Math am, J., concur.