
    Cesidio Pellegrino, Respondent, v. Clarence L. Smith Company, Appellant.
   Judgement and order reversed and new trial granted, costs to abide the event. Defendant was not shown to have been negligent. The foreman’s statement to plaintiff, half an hour before the accident, that the face of the rock excavation was not dangerous, did not make defendant liable for such an error of judgment as was shown by the result. (Mattson v. Phoenix Construction Co., 135 App. Div. 334; Scott v. Delaware, Lackawanna & W. R. R. Co., 148 id. 697, 701; Maguire v. Barrett, 168 id. 836.) The foreman’s alleged further remark that in case of danger "he would warn plaintiff, followed by his giving no warning before the accident, indicated that the foreman remained of the same opinion. This Was not a defect in “ways.” (Fresusk v. Pittsburg Contracting Co., 159 App. Div. 356.) A defendant who appoints an experienced and competent foreman does not thereby guarantee his judgment or that he will not make mistakes in judging of appearances in the course of an excavation. Jenks, P. J., Carr and Putnam, JJ., concurred; Millsand Rich, JJ., voted to affirm.  