
    Mart McBride, as Administratrix, etc., of Patrick McBride, Deceased, Appellant, v. The New York Tunnel Company, Respondent.
    
      Employers’ Liability Act—injmy to an employee from the premature firing of a blast by a foreman — when the foreman is a “superintendent” within the Employers’ Liability Act, although there is a general superintendent over him — contributory negligence.
    
    In an action brought under the Employers’ Liability Act (Laws oí 1902, chap. 600), it appeared that the defendant, a corporation, was engaged in constructing a tunnel under the East river; that the work, which was prosecuted by means of blasting, was carried on under the direction of one Martin, a foreman in the defendant’s employ. It was Martin’s duty to supervise the drilling of , the holes for the reception of the explosive, to direct the placing of the expíosive in such holes, to cause the men to remove therefrom to a place of safety prior to the firing of the blast, and to direct that the blast, be fired. Every man employed in the work, without regard to his grade, was subject to Martin’s direction and control, and the evidence tended to establish that the latter was invested with authority to discharge any of the men.
    It further appeared that the plaintiff’s intestate was employed on the work as a blaster; that oh the occasion in question,. immediately after the plaintiff’s intestate had finished preparing the blast for firing and before he had had time to repair to a place of safety, Martin fired the blast by applying the electric current and the intestate was killed.
    Held, that a judgment dismissing the plaintiff’s complaint should be reversed; 'That Martin came within the provisions of section 1 of the Employers’ Liability . Act, which renders an employer liable for injuries resulting to an employee “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; ”
    That the defendant was not relieved from responsibility for Martin’s acts by the fact that there was a general superintendent of the work over Martin, it appearing that the latter did not assume to take immediate charge of the details of the work, but delegated that branch of superintendence to Martin;
    That the question whether the intestate was guilty of contributory negligence in connecting the wires so as to communicate with the switch or in separating them at a point not in immediate proximity to the switchboard was .one of fact for the jury.
    "Van Brunt, P. J. dissented.
    Appeal by the plaintiff, Mary McBride, as administratrix, etc.,•of Patrick McBride, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of June, 1904, upon the dismissal of the complaint by direction of the court after a trial -at the New York Trial Term, and also from an Order entered in .said clerk’s office on the 22d day of July, 1904, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      A. C. Brown, for the_appellant.
    
      Hoffman Miller, for the respondent.
   Hatch, J.:

The complaint herein avers a cause of action under the provisions ■of chapter 600 of the Laws of 1902, commonly called the Employers’ Liability Act. The action seeks to recover damages for the -claimed negligent act of the defendant resulting in the death of the plaintiff’s intestate. , The defendant is a domestic corporation, and.' on the 9th day of November, 1903, was engaged in excavating two parallel tunnels under the bed of the-East river,, between, the-boroughs, of Manhattan and Brooklyn, in the city of New York,. the purpose of the excavation..being to provide a place for the construction and operation of a railroad. ' The excavation was throrighsolid rock, and the prosecution of the work involved its blasting out" and removal. The evidence upon the. part of the plaintiff tended to establish that one Martin was employed by the defendant as for'e-man 'of the work carried on in the' southerly tunnel. The meili employed under Martin’s supervision consisted of rock drillers, who-drilled holes in the rock, a blaster, who held a certificate issued to* him .by the fire commissioher of the city of New York pursuant to-certain regulations of tlie municipal explosives'commission and certain ordinances, of said city (Brown’s Greater N. Y. Gen. Ord. [ed. 1903] 276-278) adopted under and by virtue óf the authority conferred by “Section Three” of the Greater New York cliarter (Laws- of ( 1901, chap. 466), .and men called- “muckers,” who-removed the broken rock and debris after a blast had been exploded. Martin directed the drillers where they, should drill holes for the reception of the explosives^ and, when drilled and: ready therefor, directed McBride, plaintiffs intestate, to prepare-the .blast, and when prepared and ready for explosion, lie directed all of the -men at work in the heading of the tunnel to depart: therefrom to a place of safety while -the blast was being fired. The explosive psed was dynamite, and the-method of its use was to-place stick's thereof in -the several holes which had been drilled, connect them with electric wires, and, when Connected, the men were* directed to pass out from the heading, and when they were all removed to a place of safety,.McBride’s duty was to apply t-lie- - electric current by means of a. switchboard outside the air lock, which exploded the blast. The evidence was sufficient to authorize the jury to find that Martin was invested with the duty of superintendence of the work thus carried on; On the morning of -the 9th. day of November, 1903, McBride was summoned to prepare the-blast;' He had inserted the.dynamite in the holes and'had connected the electric wires therewith., - Martin had directed the men to cease work in tile fore part of the ’tunnel and retire to a" place of safety. McBride and/three otliers were still in the heading. Martin, who was hurrying the progress of the work, was informed that four men were still in the heading. He ran in that direction, but immediately returned, spoke to one Burney, who asked him what was the matter, to which Martin replied : “ Nothing, everything is all right.” He immediately passed to the switchboard, turned the switch and set off the blast. At that time McBride had just finished attaching the last wire, and, as he straightened up from a stooping position, the blast went off, inflicting mortal injuries, from which he died in a few minutes thereafter. The other workmen were injured, but not seriously.

The court held that Martin in setting off the blast was not engaged in any act of superintendence imposed upon him by the master; that, therefore, the plaintiff did not bring her case within the terms of the Employers’ Liability Act, and, upon motion of the defendant, it dismissed the complaint. It may be conceded that, independent of the statute, the setting off of the blast by Martin would be construed as the act of a fellow-servant without regard to the nature of his position, and no liability would attach to the master by reason of such act. (Crispin v. Babbitt, 81 N. Y. 516.) The statute, however, seems to have been passed to meet such a case, and by its terms has created a new cause of action. Section 1 provides : “ 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.”. Section' 3, among other things, provides that an employee shall not be presumed to have assumed the risks of employment, nor assented thereto, until the employer has exercised due care in providing for the safety of his employees, and has complied with the laws affecting or regulating such business or occupation. That section further provides as follows: “ The question whether the employee understood and assumed the risk of such injury, or was guilty of contributory negligence, by his continuance in the same place and course of employment with knowledge of the risk of - injury shall be one of fact, subject to the usual powers of the court in a proper case to set aside a verdict rendered contrary to the evidence.” Tested by the" standard established by the act, it appears that Martin, as foreman, had the immediate and general superintendence of the prosecution of the work in this heading. It was his duty to supervise the preparation ’of the work of the drillers for the reception of the explosive, to direct the placing of the-dynamite in the holes, to cause the men to remove therefrom to a place of -safety prior to the firing of the blast, and' also to direct that the blast be fired. Every man employed therein, without regard to his grade, was subject to his direction and control, and the evidence tended to' establish that 'he was invested with authority to discharge the men so employed. The case in principle is, therefore, brought directly within the decision of McHugh v. Manhattan Ry. Co. (179 N. Y. 378). Therein an employee of the railroad company, whose business it was to couple the engine to an elevated train where the same was. made up, was killed by the starting of the train while engaged in making' a coupling. The decision- of the case turned upon whether the starting of the train was an act of superin-, tendence or a mere detail of the work. One Flanagan had been substituted to perform the duties of the regular train' dispatpher at the time when the accident occurred. In disposing of the question, •it was said by Cullen, Oh. J,: “ In the present case under the defendant’s rules already quoted and the ordinary conduct of its business the making up of the trains and their dispatch from the yard were - functions imposed on the superintendent or train dispatcher as a part of his duty as such. ■ Both were duties ' or ■functions of superintendence'. The failure of Flanagan,' if there were such, was in his failure to properly supervise the preparation of the train, and in failing to ascertaint that the engine had been connected with .the cars and that the employee engaged in, that labor had withdrawn to a place of safety.” This language precisely-fits this case. • Martin had-charge of the prosecution of- the work, the preparation and firing of the blast and the removal of the men to a place of safety. In the discharge of these duties he was acting as superintendent, and within the terms of the act liability is imposed upon the master for his neglect. While it is true that there was a general superintendent of the work over Martin, yet he did not assume to take the immediate charge of the details in prosecuting the work, but delegated that branch of superintendence to Martin, who thereby became the alter ego of the master. It was precisely the same difference which existed between Flanagan, the train dispatcher in the McHugh case, and the general superintendent of the railway. Such fact does not relieve the defendant from responsibility for the acts of Martin.

It is further suggested that plaintiff’s intestate was guilty of contributory negligence in connecting the wires so as to communicate with the switch, or in separating them at a point not in immediate proximity to the switchboard. Such question, however, became one of fact under the terms of the act, which required its submission to the jury.

These views lead us to the conclusion that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Patterson and O’Brien, JJ., concurred; Ingraham, J., concurred in result; Van Brunt, P. J., dissented.

Judgment reversed, new trial ordered, 'costs to appellant to abide event.  