
    Bernard Murphy, Respondent, v. Patrick Hallinan and James Hallinan, Appellants.
    
      Blasting — explosion of one of two dynamite charges creating a fissure communicating with the unexploded charge — injury to a servant by the premature explosion of the. latter charge in consequence of the existence of such fissure — when the master is not liable unless he knew of the fissure.
    
    In an action brought to-recover damages for personal injuries, it appeared that the defendants, who were copartners, were engaged in excavating rock by means of dynamite and that the plaintiff was in their employ; that two holes were drilled in the rock six feet apart, one of the holes being drilled in a ledge which was about a foot higher than the ledge in which the other hole was drilled; that the upper hole was four and a half feet long and the lower hole'three and a half feet long; that both holes were charged with dynamite and that an attempt was made to explode such dynamite, but that the dynamite in the lower. hole did not explode; that by the explosion of the charge in the upper hole a loose rock was thrown on top of the lower ledge of rock near the hole which contained the unexploded charge; that while the plaintiff was attempting to remove the unexploded charge, with a metal spoon and while one of the defendants and an assistant were hammering upon the detached piece of rock, the dynamite in the lower hole exploded injuring the plaintiff.
    The plaintiff gave evidence tending to show that as a result of the explosion of the charge in the upper hole a seam about a quarter of an inch wide was created which ran through the lower hole, and that the ledge upon which the detached piece of rock lay had itself become somewhat loosened. The plaintiff claimed that the hammering upon the detached piece of rock resting upon the loose rock next to the lower hole communicated a jar to the dynamite in that hole and exploded it.
    The evidence established that the explosion could not have been occasioned by the hammering had the seam and the loosening of the adjacént rock not existed. There was no direct evidence that the defendant, James. Hallinan, who was present at' the time of the accident, knew of the existence of the seam, and the jury might properly- have found that he did not have such knowledge.
    
      Held, that it was improper for the court to refuse to charge, “that unless the defendants knew, or the defendant James Hallinan knew, that the rock on the r south side of the hole; on the south side of the crack running through the lower hole, was loose at the time of an attempt to split the rock with the wedge that then there can be no recovery;” and, “that the defendant James Hallinan, and consequently the defendants in this case; cannot be guilty of negligence if James Hallinan did not know of the existence of the crack running through the lower hole; ”
    That, in the absence of evidence that the explosion of the charge in the upper hole was liable to create a Assure running through the lower hole, it was not incumbent upon the defendant James Hallinan, who was present at the time of the accident, to. make an examination for the purpose of seeing whether that condition existed.
    Appeal by the defendants, Patrick Hallinan and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 13th day of April, 1903, upon the verdict of a jury for §1,500, and also from an order entered in said clerk’s office on the 10th day of April, 1903, denying the defendants’ motion for a new trial made upon the minutes.
    The judgment appealed from dismissed the complaint as to Peter Hallinan, one of the original defendants, and from that part thereof no appeal is taken.
    
      Charles J. Palmer, for the appellants.
    
      Robert F. Livingston, for the respondent.
   Hisoock, J.:

This action was brought to recover damages resulting from the unexpected explosion of a charge of dynamite employed for blasting purposes, and which it is claimed was caused by the negligent act of one of the defendants, who were copartners, in hammering a rock near the hole where the dynamite was.

We think the learned trial justice committed error in refusing to charge, as requested by defendants, upon certain propositions assuming want of knowledge of the condition of the hole containing the dynamite.

The defendants were engaged in cleaning out some rock in the city of Little Falls for the purpose of erecting a building. Plaintiff was in their employ. It was necessary to blast the rock and for this purpose upon the occasion in question two holes had been drilled therein. These were about six feet apart. One was drilled in a bed of rock about a foot higher than the other. The upper hole was about four feet and a half long, and the other one a foot shallower. A charge of dynamite was put in each and an attempt made to explode the same. The charge in the lower hole, however, did not explode and subsequently the plaintiff with a metal spoon was engaged in trying to remove it. A loóse rock, thrown out by the blast which did explode, lay on top of the table of rock near the hole which held the unexploded. charge.' Evidence was given in behalf of plaintiff tending to show that as a result of the explosion in the upper hole a seam was created about a quarter of an inch wide running through the lower hole and that the bed rock next the hole and upon which lay the detached piece of rock already i’eferred tó, had itself become somewhat loosened; that while plaintiff had his spoon out of the hole and concurrently with the hammering by the defendant James Hallinan and his assistant upon the detached piece of rock the charge of dynamite in the hole exploded. The claim of plaintiff is that the hammering upon the detached "piece resting upon the loose rock next to the hole communicated such a jar to the dynamite as to explode it.

While, as stated, there. was evidence tending to show the existence of these conditions, it was very emphatically' disputed by opposing testimony given in behalf Of- the defendants, and they urge, not only that they did not set off the dynamite by any hammering which was done, but that, upon the other hand, the plaintiff undoubtedly set it off by striking the. charge or the cap therein with his metal spoon. Whatever may be the truth in respect to this, there does not seem to be any opportunity for plaintiff to successfully claim that the striking done by the defendant James Hallinan and his assistant could possibly have set off the charge of dynamite unless there was a seam through the hole where it rested and the rock adjoining the hole had become more or less loosened. The evidence given at least' by one or more of the witnesses called by plaintiff leaves in the mind considerable uncertainty whether under all of the circumstances the dynamite could have been exploded by the hammering, even assuming that there was a seam through the hole. Certainly all of the evidence leaves no doubt that the explosion could not have been occasioned by the hammering if the seam and the loosening of the adjacent rock were not present.

While defendants’, evidence disputed the existence of this seam and the loosening of the adjacent rock,- it still perhaps might have been permissible for a jury to find that the defendant present knew of it, if, as claimed by plaintiff, it did actually exist. Such finding, however, would have been somewhat by way of inference. There was no direct evidence which conclusively established that the defendant James Hallinan did know of the seam if it was there. After the discharge of the blast in the other hole there was more or less debris around the lower one and the said defendant was at work upon and around the detached piece of rock before mentioned. A finding by the jury that he did not know of the seam through the hole and the dislodgement of the rock around it would have been sustained by the evidence.

Under such circumstances the learned court was requested and refused to charge that unless the defendants knew, or the defendant James Hallinan knew, that the rock on the south side of the hole; on the south side of the crack running through the lower hole, was loose at the time of an attempt to split the rock with the wedge that then there can be no recovery; ” also, that the defendant James Hallinan, and consequently the defendants in this case cannot .(could not) be guilty of negligence if James Hallinan did not know of the existence of the crack running through the lower hole.’, By such refusal to charge upon an assumption of facts which might have been found by the jury, the trial justice necessarily permitted the jury to find that the defendants, through the one there engaged, ought to have known of the alleged condition even if they did not; that in the exercise of the necessary care and diligence the latter should have examined and detected the presence of the conditions which are said to have led up to the accident. We think that, under all of the circumstances surrounding the accident, this imposed upon the defendants a higher degree of responsibility than was proper.

The case was submitted upon the theory,.as we understand it, that the jury might find the defendants liable because of the personal negligence of the defendant James Hallinan in striking the rock. We think that practically and in effect that was the charge made. An attempt to apply to the solution of the case those principles which relate to the furnishing to the employee of a suitable place in which to work seems somewhat remote. Upon the theory of the plaintiff the place at which he was put to work was safe enough in the absence of the personal acts of one of the defendants. In the absence of those acts it is insisted that the accident would not have happened, and, therefore, the narrow, specific, practical question is whether the defendants were guilty of negligence upon such an assumption of facts as was made in the requests to charge already referred to.

As, already suggested, these requests leave to be determined by us the question whether, before defendant did or permitted the hammering, he ought to have assumed that the lower hole might have been broken into, and should have examined for such conditions. The two holes were six feet apart, and the bed rock in that locality in which the holes were located was solid gneiss rock. There is no evidence to indicate that the explosion of such a blasting charge as was used was liable to create a fissure running through the hole containing the charge which did not explode. So far as we are able to discover, there is no evidence to indicate that a man exercising ordinary care and caution and prudence and foresight, even in the use of such explosives as dynamite, ought to have foreseen the conditions which by plaintiff are said to have arisen. Apparently the result of the refusals to charge and of the findings by the jury was to hold that simply because a blast had exploded in one place the defendants ought to have known that there would be a crack in a solid rock six feet away. 'We think that the enforcement of such a rule of liability upon the evidence in this case would practically amount to making the defendants insurers against all possible contingencies, and of requiring them to anticipate and foresee and look out for conditions which no man in the exercise of ordinary care would be required to anticipate.

Various other questions are suggested in the case which we do not regard as essential to decide in view of the conclusions reached upon the branch discussed.

The judgment and order should be reversed.

All concurred; McLennan, P. J., Spring and Stover, J., upon the additional ground that the verdict was against the weight of the evidence.

Judgment and order reversed and new trial ordered, with costs to the appellants to abide event, upon questions of law and of fact.  