
    Mary McBride, as Administratrix, etc., of Patrick McBride, Deceased, Respondent, v. The New York Tunnel Company, Appellant.
    First Department,
    June 15, 1906.
    Negligence — injury to employee by blast—verdict for plaintiff sustained — Employers’ Liability Act— question of superintendence and risk inherent in employment, for jury.
    A verdict for the plaintiff for the death of her intestate by the negligent act of the defendant’s superintendent sustained on the opinion on the former appeal, the defendant failing to show any new material facts;
    When an action is brought under the Employers’ Liability Act, it is not error to submit to the jury the question as to whether or not the defendant’s employee, in committing the act which caused the death of the intestate, was performing an act of superintendence.
    In such an action the question as to whether or not the premature explosion which killed the intestate Wás a risk inherent in the business is for the jury. McLaughlin, J., dissented, with opinion.
    Appeal, by the. defendant, The New York Tunnel Company, from á judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of, the cpunty-of New York on the 20th day of November, 1905, upon the verdict of a jury for $3,000; also from an order entered in said clerk’s office on the 15th day of November, 1905, denying the defendant's motion-for a new trial made upon the minutes, arid, also'from an order entered on the 16 th day of November, 1905, awarding to the plaintiff an extra allowance of costs. ........ ■; -
    
      Hoffman Miller, for the appellant.
    
      A. C. Brown, for the respondent.
   Patterson, J.:

This action was brought to recover damages for the alleged negligent killing of the plaintiff’s intestate McBridp by an employee of the - defendant named Martin, It is unnecessary to enter upon a recital of the facts connected with the occurrence which resulted in the death of the intestate, for all that are material are stated in the opinion of this court-(101 App. Div. 448), rendered in the-case when it was before1 us on appeal from a judgment dismissing the complaint. Although the present record contains testimony of witnesses for the defendant who were, not examined oh the first trial,, ■ yet that testimony does, not in any respect change .the aspect in which the case was and is to be viewed upon the crucial question, whether Martin was a superintendent of the defendant within the meaning of the Employers’ Liability Act. What Martin’s duties ' were and what he did generally in his employment and at the time of the particular occurrence which respited in the death of the intestate, was before the court on the former appeal.. 'The testimony of the defendant’s witnesses on the last trial does not change in any,way Martin’s relation to the defendant Or to those who were engaged in the work of blasting at the time McBride was killed. Upon a comparison of the record on the former appeal with that now before us and taking into consideration all that is testified to by the defendant’s witnesses with reference to Martin’s employment, we do not find any material fact affecting or' varying those . commented upon in the opinion written on the former appeal, and upon.which it was determined by this court that Martin, at the time of McBride’s death, was exercising an act of superintendence and that his negligence alone caused McBride’s'death. •" _ _ .

It must., therefore* be regarded as the settled law of this case "in this court that Martin was a superintendent and was exercising superintendence within the intent and scope of tlie" Employers1 Liability Act (Laws of 1902, chap. 600).. It is claimed, however,, that it is shdwn that McBride was guilty of contributory' negligence and the specific'act constituting such alleged negligence is pointed out. It is the same act referred, to on- the former appeal and concerning which this court said that it was a question which must: he submitted to the jury. On the whole récord we see no reason for interfering with the verdict of the jury-on the subject of the negligence of the defendant’s superintendent or of the contributory negligence of the plaintiff’s .intestate. Both those questions were submitted to the jury under proper instructions.

We do not discover any new point of view in which the' case should be considered. The action" is, of course* not one to enforce a córnmomlaw liability. It is founded only upon the provisions of the Employers’ Liability Act. The court below did not err in submitting to the jury the question whether or not Martin when he committed the act, which the jury found caused the death of McBride, was exercising an act of superintendence: It was held ou-

tlie former appeal that that was a question to be submitted to the jury, and it was also decided that it was error to hold that the very act which was committed by Martin was not an act of superintendence. The efEect of "the decision on the former appeal is to hold, that it was such an act.

It is argued further that the explosion caused by Martin’s act, that is, a premature explosion, was inherent in the nature "of the business in which McBride was engaged and'that, therefore, the complaint should have been dismissed. That, however, under the provisions of the Employers’ Liability Act was a question for the jury, as was also heretofore pointed out. It would be sufficient to affirm this judgment on the opinion rendered on the former appeal, but for the fact that the defendant, on the second trial, called witnesses. But their testimony does not change in any substantial way that given by the plaintiff’s witnesses, on the former and on this trial, respecting the duties and relations of Martin to the defendant and to the work in which it was engaged.

There areno exceptions requiring consideration, and the judgment and order appealed from should be affirmed, with costs.

O’Brien, P. J., Ingraham and Houghton, JJ., concurred; McLaughlin, J., dissented.

McLaughlin, J. (dissenting):

The death of plaintiff’s intestate was caused by the negligent act of Martin in setting off the blast. Nevertheless, the judgment is about to be affirmed upon the theory that inasmuch as Martin was a superintendent or foreman of -the workmen who "drilled the holes into which the dynamite that exploded was put, the case is brought within the provisions of chapter 600 of the Laws of 1902, known us the Employers’ Liability Act, whichmakes the defendant liable. This act provides, among other things, that “ where, after this act takes ■ effect, personal injury is caused to an employee, who is himself in the exercise of due care and diligence at the time * * * by reason of the negligence of any person in the service of the employer entrusted with and exercising superintendence, whose sole or principal duty is that of superintendence, or:'in the absence of such superintendent,, of any .person acting as superintendent, with the authority .or consent, ,of . such,employer,, .the 'employee, ,or in case, the. injury results in.death,,the.executor or administrator of a deceased . employee who.has left, him surviving,a husband, wife or next of kin, - shall have the same right .of compensation and remedies against the employer as if the employee had not been., an -employee, of nor in the service of the employer nor engaged in.his work.” .

There is absolutely no. evidence to support the conclusion that : when Martin, fired the. blast,. he .was doing, anything which the ; defendant had. authorized, consented or permitted him to do, or over which lie exercised, any act of superintendence whatever, . He had - nothing to do with the /blasting operation.. . His duties related solely : -to;drilling holes in the rock and, after, dynamite, had .been inserted ■ 'therein and, exploded by McBride, to remove the debris. He could . not handle.the .dynamite, insert it in the holes, or explode it. " The only person -who was . authorized or .permitted, by defendant to,do this work was McBride,, who alone had the necessary permit to- do • it. Martin was only foreman, of the, men, who did the .drilling ,and removed the rock, after the dynamite, had been fired. .This is .the only act of superintendence, with which , he had been intrusted by -defendant, To hold,-under, such circumstances, that .the defendant is liable for Martin’s acts, because he was at the time “ exercising superintendence” or “acting, as superintendent with the authority or consent” of defendant is to extend the Employers’Liability Act way beyond what the words warrant,. or the Legislature, as it - seems to me, intended, , , ,

I, therefore, am unable to concur ,in the opinion of Mr. Justice Patterson and vote to reverse, the judgment, and. order a new trial.

Judgment and order affirmed, with costs. Order filed.  