
    Martino Di Stefeno, Appellant, v. Peekskill Lighting and Railroad Company, Respondent.
    
      Negligence—injury to an employee from, the explosion of dynamite in a stone being broken by him — liability of the master under the Employers’ Liability Apt — assumption of the risk by the employee—assurance of safety by the foreman.
    
    In an action brought under the Employers’ Liability Act (Laws of 1902, chap. 600), to recover damages for personal injuries sustained by the plaintiff, while working as a laborer in the defendant’s quarry, in consequence of the explosion of a stick of dynamite contained in a rock which the plaintiff was breaking, the plaintiff testified that he knew nothing of the qualities of dynamite and was unaware of the presence of dynamite in the rock which he was breaking, and of the fact that, if there was dynamite therein, it would be likely to explode under the blow of his hammer.
    He further testified" that on first striking the stone he heard a noise like a gun shot, which caused him to desist from working thereon; that on communicating his fears to the defendant’s foreman, who was apparently in sole charge of the work, the latter personally examined the stone and assured the plaintiff that there was no danger; that the foreman indicated the point at which the plaintiff should strike the rock, and that when the plaintiff struck the rock at the point indicated the explosion occurred.
    Evidence was also given tending to show that the foreman either knew or, in the exercise of ordinary care, should have known that there was a stick of unexploded dynamite in the stone.
    
      The court dismissed the complaint on the grounds “'that the accident was occasioned through a risk of his (the plaintiff’s) employment, and that he (the plaintiff) has failed to show any negligence on the part of the defendant.”
    
      Held, that the judgment of dismissal should be reversed;
    That the risk, resulting from the presence of unexploded dynamite in the rock, was not an inherent and necessary risk of the employment where the employer has exercised due care, and that, consequently, the question whether the plaintiff had assumed the risk of the injury was, under the provisions, of section 3 of the Employers’ Liability Act, one of fact for the. jury to determine — particularly in view of the evidence as to the plaintiff’s unwillingness to continue at work upon the rock in question and as to the foreman’s assurance of safety;
    That, in view of the foreman’s position and special skill, his examination of the rock in question could not be deemed as matter of law to be a mere detail of the work, nor could his negligence in the respects -charged be deemed as matter of law to’be that of a fellow-servant of the plaintiff.
    
      Quasre, whether at common law the plaintiff would, as a -matter of law, be regarded as having assumed the risk of the injury which he sustained.
    Appeal by the plaintiff, Martino Di Stefeno, from a judgment of the Supreme Court in favor of the defendant,- entered in the office of the clerk of the county of Westchester on the 15th day of March, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Westchester Trial Term. -
    
      Frank L. Young, for the appellant.
    
      Nathan P. Bushnell, for the respondent.
   Hirschberg, P. J.:

The plaintiff sues by virtue of the provisions of the Employers’ Liability Act (Laws of 1902, chap. 600), to recover damages for- the loss of' his leg by reason of injuries sustained while he was engaged . as a laborer in the defendant’s quarry. He was breaking a piece of stone with a sledge hammer under the express orders and direction ' of the defendant’s foreman, then apparently in sole charge of the work, and a piece of dynamite which had been carelessly left in the stone exploded from a blow of the plaintiff’s hammer and inflicted the injuries referred to. The learned trial justice based the dismissal of the complaint on the grounds “ that the. accident was occasioned through a risk of his (the plaintiff’s) employment, and that he (the plaintiff) has failed to show any negligence on the part of the defendant.” The only question for review is the soundness of this ruling.

It seems clear that the question of assumption of risk was for the jury, and could not be properly disposed of as one of law. The plaintiff had nothing to do with the work of blasting, but was employed only to break up the fragments of stone which remained after the larger rock had been blasted by other workmen with the use of dynamite. The accident occurred on Monday morning, the rock, of which the piece handled by the plaintiff was a fragment, having been blasted the previous Saturday. The plaintiff testified that' he knew nothing of the qualities of dynamite; that he did not know that there was a charge of dynamite in the stone, and that he did not know that if such a charge was in the stone it would be likely to explode under the blow of a sledge hammer. He further testified that on first striking the stone he heard a noise like a gun shot, which caused him some fear that there might be some powder left in the stone, and he accordingly ceased working on it, but he afterwards told the foreman he was afraid to break the stone on that account, whereupon the foreman personally examined it and assured him that there was no danger. He testified on cross-examination as follows: When I told the boys how this shot went off the boys came along and then they cleaned the stone and said, what is the use of being afraid about it, hit over there. I was afraid that the stone would explode. I was not afraid to break the stone, but I was afraid the noise made in the morning when I struck the first and make that sound like a gun shot, that is what I was afraid of, but I don’t know what was in it. I was afraid that there was some powder there left, and then of course, I didn’t want to hit the stone any more, but when this Louis came along, my toss, he brushed the stone with his hands, and he said nothing the matter with this stone, hit here, and then of course I had to do it.”

The plaintiff struck the stone in obedience to the orders so received, and at the place indicated, and the explosion immediately followed. Whether at common law he would have been regarded in the circumstances as assuming the risk of what occurred, as matter of law, need not be determined, in view of the provisions of section 3 of the act under which the suit is brought. It is therein provided, in substance, that an employee by entering upon or continuing in the service of an employer shall be presumed to have assented to only the necessary risks of the occupation; that such risks shall include only those inherent in the nature of the business which remain after the employer has exercised due care in providing for the employee’s •safety; that in" an action for injuries received owing to any cause for which the employer would otherwise be liable, the fact that the employee continued in the service after the discovery of danger of personal injury therefrom, shall not, as a matter of law, be considered as an assent by such employee to the existence or continuance of the risk of personal injury therefrom; and that the question whether the employee understood and assumed the risk of such 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. I think these provisions make the question under consideration .clearly one for the jury’s determination* It cannot be pretended that in the process of shattering rock by dynamite the-existence of an unexploded charge is an inherent and necessary risk -where due care has been exercised in the performance of the work and in the inspection of the result. Nor is the special assurance of the foreman to the plaintiff that there was absolutely no risk a matter to be lost sight of in this connection. The foreman was apparently the only person on the work who was intrusted by the defendant with the duty of, and who was engaged in exercising superintendence over, the work, and quite independently of what the plaintiff may or may not have known of the nature of explosives, it is not incredible that he should accept the assurance of a foreman and superintendent after an examination of the stone that there was no danger in continuing his work upon it. The plaintiff cannot be logically regarded as having assumed the risk of a particular danger when he only consented to work upon the confident and apparently well-justified assurance of one in authority that the danger did not in fact exist. The, ease is presented practically on his evidence alone so far as regards this question, and it is obvious from his statement that he refused to assume the risk of the presence of explosives in the stone and that he Was only induced to continue his work by positive orders coupled with authoritative assurance that his apprehension of danger was groundless.

There was some evidence of negligence on the defendant’s part.

The plaintiff produced a witness (hostile to him, as the learned trial justice perceived and stated) who testified to facts from which the jury might have concluded that the foreman either knew or in the exercise of ordinary care would have known that there was one stick of unexploded dynamite in the stone. The witness testified that three sticks had been placed in- the stone originally; and that he took one out and the foreman another, leaving the third one in. It is true that he also stated that he told the plaintiff that the third stick had been left in, but the jury might not have believed that part of his evidence in the face of the plaintiff’s denial, while giving full credence to the remainder of his testimony. The result would have furnished a reasonable foundation for the conclusion that the foreman or superintendent had been heedless and negligent first in not seeing that all the dynamite was taken out before a workman was directed to crack the stone; and afterwards, when his attention was called to the fact that the presence of dynamite was still, suspected, in not thoroughly verifying the fact before giving positive orders based on a contrary assumption. He certainly knew that the blasting charge had not been completely fired, and yet gave the peremptory order which resulted in the plaintiff’s injury with that knowledge, and presumably with full knowledge of the risk to the plaintiff which the fact necessarily entailed. The case was tried on the theory that he was the defendant’s superintendent or acting superintendent, and if so, his negligence in this instance is chargeable to the defendant. (Employers’ Liability Act, supra,$ 1, subd. 2.) His examination of the stone in view of his position and special skill cannot be deemed as matter of law to be a mere detail of the work; nor can his negligence in the respects charged, if established, be deemed as -matter of law to be that of a fellow-servant of the plaintiff. (Schermerhorn v. Glens Falls Cement Co., 94 App. Div. 600; Welle v. Celluloid Co., 175 N. Y. 401, 405; McHugh v. , Manhattan Ry. Co., 179 id. 378.)

The judgment should be reversed.

Bartlett, Jenks, Rich and Miller, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.  