Vitto v. Farley

—The plaintiff recovered a verdict of $750 for the loss of a hand occasioned by the explosion of a charge of gunpowder and dynamite which he was engaged in extracting from a hole drilled in a rock after the charge had failed to explode. He was a laborer who had been, for two months prior to the accident, employed to break stones and drill holes by the defendant, a contractor engaged in the business of excavating and blasting rock, in which gunpowder and dynamite were used, and had been, fo.r some years before the accident, which took place in January, 1892, at Seventy-Third street, between Second and Third avenues, where defendant was then engaged in extensive excavating work, necessitating frequent blasting of rock. The plaintiff had been accustomed to the work of blasting rock for some years, in Italy, before coming to this country, but not to the use of dynamite ; and he was not aware that any was used in the charge that he attempted to draw. He. testifies that he was directed by defendant’s foreman over the work to draw the charge in question, and claims that this injury occurred through his being set to work

The act of the foreman in, directing the defendant, a colaborer employed to break stones and drill holes, to draw a charge from a blast, without ascertaining what his knowledge or experience was, cannot be regarded other than as'negligence. This work required a certain amount of skill, and the foreman was not justified in assuming that every laborer who might obey the order to perform it liad the necessary knowledge or experience. No common laborer could, with due regard for safety, be permitted to undertake it, no matter how willing or eager he might be, unless he were first tolcl what the blast contained, or interrogated as to his knowledge. I do not lose sight of the fact that the foreman, in his account of the affair, testified that he did not give the order to-the plaintiff, but to the particular men engaged in the work, and, moreover, that he forbade the plaintiff to attempt it, although the latter persisted that he knew how to do it; but the jury, having the issues presented to them, decided that the proof on the plaintiff’s part preponderated, and I must assume the fact to be as found, because there is no sufficient reason for disturbing this finding which would not warrant a reversal of a verdict in every case of conflict of testimony. I am, therefore, to deal with the case as one in which a workman, employed as a colaborer, and not in the work of blasting, is directed to draw an unexploded charge without being either instructed or questioned as to the nature of the peril arising from the use of the explosives employed, or his experience in dealing with them. It is urged that he was negligent in undertaking a work in which he was not experienced. It would be so if he were wholly unacquainted with blasting; but it appears that he was experienced in gunpowder blasting, and had no suspicion that this was of a different kind. He proceeded with the care customary in the use of gunpowder, and inadequate, as the result proved, in dynamite blasting, and was thereby injured. The question of contributory negligence was left to the jury, and they found, under the circumstances, that he was not negligent.

The negligence of the foreman and the absence of contributory negligence being established, the question is whether the defendant, who employed both foreman and plaintiff, is responsible for the act of the former. The foremán and plaintiff were fellow-servants, although one was subject to the other; and negligence in the foreman’s performance of duty as a servant was a risk, assumed by plaintiff, as an incident of the business, like the possible negligence of any follow laborer. Certain duties of the master cannot be lawfully delegated to the foreman or other employe, and, if they are, then, as to these, the foreman is not the fellow servant of the plaintiff, but stands in the shoes of the master. Among those duties is that of warning inexperienced employes, set to work in a place of danger, of the perils of the employment in which they áre engaged. 14 Am. & Eng. Enc. Law, 897, and cases; Wood, Mast. & S. 349. Where a company, through its superintendent, furnished an unusual, unfit, and unsafe blasting

Motion for a new trial granted, with costs to defendant to abide event.