
    Frank Ianne, as Administrator, etc., of Ansilio Ianne, Deceased, Respondent, v. United States Gypsum Company, Appellant.
    Fourth Department,
    May 13, 1908.
    Master and servant — injury in mine — failure to support roof — evidence — harmless error.
    A common laborer in a mine while transporting props in tram cars to be used by a “propsetter” to support the roof of the tunnel, is not engaged in making the mine safe, and his representative may recover for his death, caused by the fall of the roof, on the ground that the master failed to provide a reasonably safe place in which to work.
    • Where the top of the tunnel was composed of a stratum of ash-roclc which slacked on exposure to air, and was likely to fall when jarred by blasting, unless supported, a master is negligent in allowing a surface of fifty or sixty square feet to remain unsupported for more than a month.
    A common laborer employed in a mine who, following directions, transports props by tram cars to be used by the propsetter to support the ceiling without knowledge of danger from falling rock, is not guilty of contributory negligence, nor does he assume the risk, being entitled to assume that the roof will be supported in a reasonably proper manner.
    Where the negligence of a master in failing to support the roof of a mine is beyond question, and a verdict for the plaintiff is not excessive, it is immate rial that the plaintiff was allowed to introduce inadmissible evidence as to the condition of the mine some time prior to the accident.
    Keuse and Robson, JJ., dissented.
    Appeal by the defendant, United States Gypsum Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Genesee on the 16th day of September, 1907, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 7th day of December, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    The action was commenced on the 13th day of December, 1906, to recover damages because of the death of plaintiff’s intestate, alleged to have been caused solely through the negligence of the defendant.
    
      H. E. Rourke, for the appellant.
    
      Eugene M. Bartlett, for the respondent.
   McLennan, P. J.:

The defendant is a corporation engaged in mining gypsum at Oakfield in Genesee county, N. Y. There was a shaft fifty or sixty feet in depth sunk to the bottom of the mine, and from the bottom of the shaft were tunnels leading to different parts of the mine, following as near as could be the veins of gypsum. Extending over the strata of gypsum there was a stratum of ash-rock which was of some two feet or more in thickness, and over it was a limestone formation which covered the' whole. The gypsum and material necessary to be removed in order to reach the gypsum were loosened by means of blasts, and this loose material was removed from the place where located by means of little cars run upon a tramway, which, when loaded, were moved along the track to the bottom of the shaft and then raised to the surface of the ground. The ash-rock, when exposed to the air, was liable to become slaked and to fall, unless properly supported by props; and as the work progressed it was the duty of one of defendant’s employees, who was called a propsetter, to place the props in such manner as would prevent the ash-rock from coming down, and this was done under the direction of the superintendent or foreman who represented the master.

The accident occurred on the 23d day of October, 1906, at which time the plaintiff’s intestate, who was an Italian, was engaged with another workman ip moving the little cars to the bottom of /the shaft from the place where the material had been loosened, and then running the cars back to the place from which they had started, for another load. On the day in question the plaintiff’s intestate, with his associate, had gone to the bottom of the shaft with a load of rock, and was directed to take back with him a load of props with which to support the roof. Such props were loaded upon the car and the car was pushed back to the place from which the load of rock had previously been taken, and were being unloaded and delivered to the propsetter; and while thus engaged in unloading the props a large area of ash-rock fell upon the plaintiff’s intestate, the propsetter, and the associate of plaintiff’s intestate. The propsetter and plaintiff’s intestate were instantly killed; the associate of the intestate was also caught under the rock, but was not crushed.

It appears very conclusively that plaintiff’s intestate was not engaged in making the mine safe. He knew nothing about the* danger attending the failure to properly prop the mine; he was not engaged in that work; he simply was asked to deliver and unload the props at the end of the' line where he was at work, so that they could be obtained and used by the propsetter. So that it seems to me clear that the plaintiff has a right to insist that it was incumbent upon the defendant to provide his intestate with a reasonably safe place in which to work. That the place was not safe and that its unsafe and dangerous condition was known to defendant is absolutely beyond dispute. It appears that a space some fifty or sixty feet square where the deceased was working was allowed to remain for more than a month without any props, and.the experience of the defendant and of its then superintendent taught them that the ash-rock was liable to fall at any time when jarred by the force of the blasts which were constantly being put in the vicinity of this large space of unsupported roof.

In other words, without going into the details of the evidence, it seems to me that the negligence’ of the defendant is absolutely established because of its failure to provide the plaintiff’s intestate with a reasonably safe place in which to work. That negligence is not only proven by the plaintiff, but the superintendent of the defendant, the only witness called by it, testifies practically to the same thing.

There is no basis in the evidence upon which to charge plaintiff’^ intestate with contributory negligence.' He’was doing his work at the time of the accident precisely as he had been told to do it and as he had been doing it ever since he had been in defendant’s employ. Neither is there anything to support the suggestion that he assumed the risk. He had no knowledge that any danger existed from the falling of the rock, and he had a right to assume that the roof would be supported in a reasonably proper manner.

The appellant insists that the judgment should be reversed because of the erroneous admission of certain evidence; and while the particular evidence of which it complains is not pointed out in the brief of appellant’s counsel, he refers to the whole of the eviidence of the plaintiff’s witness, a Mr. Watts, which is contained in the record at folios 155-224. Several of the answers given to the questions propounded by plaintiff’s attorney were clearly incompetent. Mr. Watts had been superintendent of the mine for some years and up to within three or four months of the time of the accident. He was permitted to testify, over defendant’s objection, as to the manner in which the mine was managed and operated during the time he was superintendent, and such testimony was received upon the theory that it would be shown that the same methods had continued up to and including the time of the accident. But such connecting evidence was not given, and a motion was made to strike out the evidence already given, which was denied. The witness was also permitted to testify to what had been said to him by the manager of the mine in regard to placing blasts; that they wanted him to set off two or more blasts at one time, which he refused to do because it would increase the danger to the work. He was allowed to say, in substance, that the purpose of such request on the part of the management was to save time and expense. Other evidence of the same sort was given over defendant’s objection, and it was clearly incompetent, and was such as to furnish ground for reversal, except that, as it seems to me, it did not have any bearing upon the real issue in controversy in this case, to wit, whether or not the mine at the time of the accident was reasonably safe. As before said, the fact that it was not so is established practically without contradiction. Upon the evidence the jury could not have found otherwise than it did, that the condition of the mine at the time of the accident was unsafe and dangerous because of the failure of the defendant to see to it that the roof was properly supported, and that that unsafe and dangerous condition existed for such length of time as that the defendant knew it, or ought to have known it, by the exercise of reasonable care and diligence. Besides, it cannot be said that the improper or immaterial evidence improperly influenced the jury, because the amount of the verdict was certainly conservative. Here was a bright, healthy young man, twenty-three or twenty-four years of. age, earning good wages, who was killed, and the verdict was only $2,500. Ho harm resulted from the reception of the evidence objected to. Beyond question the place where plaintiff’s intestate was set to work was unsafe and dangerous in the extreme, and the defendant knew, or ought to have known, that fact. The deceased knew nothing about it; he was performing his work precisely as directed.

The judgment and order appealed from should be affirmed, with costs.

All concurred, except Reuse and Robson, JJ., who dissented.

Judgment and order affirmed, with costs.  