
    Germano P. Baccelli, as Administrator, etc., of Michael Logreco, Deceased, Appellant, v. The North River Stone Company, Respondent.
    Third Department,
    June 24, 1909.
    Blaster and servant — negligence — injury by blast — failure to employ safety fuse — premature explosion caused by lightning.
    A master who employs the method of firing blasts by electricity is not negligent in failing to use a “ safety fuse” in the manner prescribed by the Commissioner of Labor, as such fuse is not used where blasts are fired by electricity, but only in cases where the blast is ignited by a hot iron.
    A master who employs the method of firing blasts by electricity cannot be held negligent in failing to foresee that the blast might be prematurely fired by lightning striking the exposed ends of wires laid upon the ground in the absence of evidence that precautions against such an accident were taken in other quarries.
    Kellogg, J., dissented.
    Appeal by the plaintiff, Germano P. Baccelli, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Ulster on the 18th day of February, 1909, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Ulster Trial Term,
    
      Albert F. Forthmitter [George R. Salisbury of counsel], for the appellant.
    
      Rosendale & Hessberg [J. Murray Downs of counsel], for the respondent.
   Smith, P. J.:

The action is for damages for the death of plaintiff’s intestate, caused, as it is claimed) by the negligence of the defendant. The defendant was the owner of some stone quarries near the city of Kingston,! in Ulster county. Plaintiff’s intestate was engaged in blasting in said quarries. The- method of procedure was to drill a hole about sixteen feet deep ; to put in four or five sticks of dynamite and then to put in a cap, to which was attached a wire which ran to the surface of the ground, where, according to the testimony, the wire was..separated into two wires. . This wife was insulated, but for an inch at the end of the wire the insulation was cut off for the purpose of making contact with a battery by which the cap was exploded'. Upon the day in question eight holes had been drilled and loaded, and the wires extended above the ground exposed for about an inch where the insulation had been cut off. The purpose was to explode these blasts about' five-thirty in the afternoon. About four o’clock a thunder, shower occurred, and it is fairly infer-. able .that a flash of lightning caused the explosion of two of the blasts, whereby stone was thrown upon the plaintiff’s intestate and he was killed. The negligence mainly urged is in the failure of the defendant to use a safety fuse in accordance with the rules claimed to be laid down by the Commissioner of Labor to regulate the safe conduct of blasting. By section 120 of the Labor Law (Laws of 1897, chap. 415, as amd. by Laws of 1907, chap. 399) it is provided that the Commissioner of Labor shall see that every necessary precaution is taken to insure the safety and health of employees employed in the mines and quarries * . * * of the State, and shall prescribe rules and regulations therefor.” Thereafter the Commissioner of Labor did prescribe certain regulations, among which were as follows: “ Preparing the Charge. Cut a piece of safety fuse to the right length and carefully insert the fresh cut end in a blasting cap.” The plaintiff’s argument is that this rule of the Commissioner of Labor, made pursuant to the statute, requires the use of a safety fuse in order to explode the charge. In this, however, we think the plaintiff is in error. The safety fuse is described in the evidence as “ an asbestos tube filled with powder; it is insulated with asbestos; it is a powder fuse insulated with asbestos; it is about three-eighths of an inch in diameter.” The manner of igniting this safety fuse is further testified to : “ Ton ignite the end by a match if you are using one or two, or by a hot iron. * * * Then a man goes along and touches that off with a hot iron, and if you have eight' or ten charges to shoot, you can make the fuse longer or shorter, you make the shorter fuse for the last one you go to and the longer one at the first one. There is a whistle blown just before the man starts — a man goes along, and sticking out of the ground are the fuses I speak of, and he touches each one with a red hot iron, and if you have eight or ten, a man starts at each end: To use a slow fuse gives a man a chance to get away. Anything in the shape of fire dropping on the fuse would ignite it, and lightning would ignite it, and the fuse would carry the fire down into the cartridge just the same. This fuse I speak of is always of asbestos and the inside is filled with fine powder, and when you touch that with a hot iron or any other fire that powder will burn down till it strikes the exploder.” ; It thus appears that this safety fuse is used when the blasts are exploded by fire. Its purpose is evident — to give the man who ignites the fuse full opportunity to get away before the .explosion. There is no evidence that this safety fuse is ever used where the charges are exploded by electricity, and in fact the plaintiff’s witness himself swears as to the method in case of the use of electricity for exploding the blasts: l< I do know about the method of firing blasts by electricity, but not in work of this kind; the method.where they use electricity is to charge the hole with dynamite and put the exploder in the same way, carry two wires attached to the cap up to the surface and tamp that charge down with sand, and after the wires are carried to the surface they are all connected to form a circuit, and when the time is ready for the discharge of the blast that is fired by electricity from a storage battery; that is the method in common use.”

It thus appears that the method that was being used by the defendant was the exact method testified to by the plaintiff’s witness as the method in common use when the charge was exploded by electricity. It is further evident that the explosion by means of electricity is contemplated by .the Labor Law itself. By section 136 of that law, inserted by chapter 399 of the Laws of 1907, the use of electricity is to an extent regulated. The explosion of these blasts by electricity with these electric exploders must in reason be a safer method, as ordinarily it is impossible for the charge to explode until the connection is made with the storage battery, while in the use of the safety fuse the powder, which must come above the ground, is in danger of explosion from a lighted match or from the light from a cigar or a pipe or even from lightning itself.

The question of defendant’s negligence then resolves itself 'into the single question whether the defendant was bound to anticipate that in the use of these electric exploders there was substantial danger in a thunder shower. Upon this question there is no evidence whatever. It does not appear that any precaution was in any way required by the Labor Commissioner when these electric exploders were used. Nor does it appear that in any other quarry or mine any precaution was deemed necessary. Without some such evidence we are of opinion that the accident would not naturally be expected, and is such an unusual one that the defendant should not be held to have been guilty of a breach of duty to its servant in failing to protect the ends of these wires from the effect of the lightning. In our judgment the plaintiff has failed to sustain the burden of proof, and the judgment dismissing the complaint was right.

All concurred, except Kellogg, J., dissenting.

Judgment affirmed, with costs.  