
    Evangelista Trapasso, as Administrator, etc., of Vincenzo Renda, Deceased, Appellant, v. James S. Coleman and Others, Respondents.
    
      Negligence — death caused by the falling of a stone upon a workman employed in a stone quarry.
    
    A person operating a stone quarry, in which heavy blasts are made from time to time, is not liable in damages for the death of one of his employees, who, while at work upon a large rock which had been dislodged from its bed, was struck and killed by a rock, which had probably been loosened by a previous blast, falling upon him, where it does not appear that the accident resulted from the failure of the master to perform any of the obligations resting upon him.
    Appeal by the plaintiff, Evangelista Trapasso, as administrator, etc., of Vincenzo Renda, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 18th day of December, 1900, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on ¡the 26th day of December, 1900, denying the plaintiffs motion for a new trial made upon the minutes.
    
      Thomas J. O'Neill and Achille J. Oishei, for the appellant.
    
      Paul Gorham [David McClure with him on the brief], for the respondents.
   Woodward, J.:

The court having directed a verdict in this case, the appellant is entitled to the most favorable inferences deducible from the evidence, and all disputed facts are to be treated as established in his favor (McDonald v. Metropolitan Street Railway Co., 167 N. Y. 66, 68, and authorities there cited), but reading the evidence under this rule, the plaintiff has utterly failed to show any neglect of any .duty which the defendants owed to the plaintiff’s intestate. There is no evidence that the place in which the deceased was put at work was not reasonably safe, considering, the nature of the work to be performed; no evidence that the tools and appliances were not reasonably adapted to the work, and no evidence that the foreman and those in charge of the work were not competent and reliable men or that the plaintiff’s intestate was free from contributory negligence. The only question on which there was even the semblance of a conflict of evidence was whether the sub-foreman, in immediate charge of the gang ” in which plaintiff’s intestate was at work at the time of the accident, was given to drink. It is not contended that he was drunk at the time of the- accident, or that, if drunk, his condition had anything to do with the falling of the rock which caused the death of the plaintiff’s intestate, and there could, therefore, be no liability on the part of the defendants, even though it be conceded that their sub-foreman had at some time previous to the accident been known to be drunk, Or even that he had on the day of the accident and following it been seen to take a drink of beer. The case at bar is not to be distinguished in principle from Cullen v. Norton (126 N. Y. 1); Perry v. Rogers (157 id. 251) and Capasso v. Woolfolk (163 id. 472), and the evidence showing no negligence of any duty owed by the defendants to plaintiff’s intestate the direction of a verdict for the defendants was entirely proper.

Plaintiff’s intestate was employed with a large number of men in getting out stone for the construction of a dam. The quarry was situated in a hillside, and from time to time large blasts were made to separate the rock from the hill. Plaintiff’s intestate in October, 1898, was at work upon a large rock which had thus been separated at the base of the hill, when a rock which had been loosened, probably in a previous explosion, fell upon him, causing injuries from which he died. The evidence showed no lack of due care on the part of the defendants and their servants in respect to any duty owed by the latter, and if there was any negligence on the part of any one it was that of the plaintiff’s intestate or that of his fellow-servants in the performance of a detail of the work, for which the defendants are not liable. The danger was one which must have been as obvious to the plaintiff’s intestate as to the defendants, and the latter having furnished him with all needful appliances and with competent fellow-servants, there can be no recovery. The evidence on the part of the defendants shows affirmatively a discharge of all the duties owed to the plaintiff’s intestate, thus making the case peculiarly strong and fully sustaining the action of the court in directing a verdict.

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

Judgment and order unanimously affirmed, with costs.  