
    Lizzie Gallagher, as Administratrix, etc., of Michael Gallagher, Deceased, Respondent, v. Arthur McMullin and Jules Breuchaud, Appellants.
    
      Master and servant—injury from blasting in a caisson under water — when a servant assumes the risk—a proper request to chrn'ge {not among requests submitted) should not be denied.
    
    In an action brought to recover damages resulting from the death of the plain- . tiff’s intestate caused by the alleged negligence of the defendants, it appeared that the intestate, who, was accustomed to such work, was working as a laborer in a caisson beneath the bed of the Harlem river, a necessary part of which work consisted in blasting an old iron cylinder which had formed a pier of a former bridge, in doing which the plaintiff’s intestate was killed by fragments thrown laterally by the explosion. The negligence of the defendants-was alleged to consist in the fact that they had not, before firing the blast, placed logs over the blast. The intestate was familiar with the manner of blasting and had something to do with firing the particular blast which killed him; and the defendants’ counsel, who had already, at the request of the court, handed up certain requests to charge, none of which covered this point, requested the court to charge the jury, “if the plaintiff knew, or by the use of ordinary observation ought to have known, of the absence of any appliances to cover the blast, that his continuing in the employment, with such knowledge, does not entitle him to recover in the action, the risk incurred being one which he had assumed.” The court refused and said: “I cannot entertain it; I have given due deliberation to all these requests, and I will not entertain any request which should have been handed up before I made my charge.”
    
      Held, that the request was a most material one, and was evidently presented merely because the court had inadvertently omitted to charge upon a subject which the counsel had a right to expect would have been alluded to without any previous request, and that it was erroneous for' the court to refuse to charge as requested.'
    
      Appeal by the defendants, Arthur McMullin 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 Hew York on the 16th day of March, 1896,. upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of April, 1896, denying the defendants’ motion for a new trial made upon the minutes.
    
      Herbert C. Smyth, for the appellants.
    
      Edward C. Bailey, for the respondent.
   Patterson, J.:

This is an appeal from a judgment entered upon a verdict in favor of the plaintiff in an action to recover damages for alleged negligence of the defendants or their servants, causing the death of the plaintiff’s intestate. The proof show'ed that the plaintiff’s intestate was engaged at work as a laborer, employed by the defendants, in the interior of a caisson placed in the Harlem river, and that on the 19th day of May, 1895, he .was at work with others in that caisson beneath the bed of the river. During the progress of that work it became necessary to remove by blasting an iron cylinder filled in with concrete, which had formed one of the piers of an old bridge. The blast was discharged and a fragment of tli& cylinder was thrown by the explosion a distance of some twenty feet or more, and struck and killed the plaintiff’s intestate. It appeared in evidence that the blast was not covered by logs fastened upon it to prevent the scattering of missiles or projectiles from the material that was being removed, and it was claimed on the part of the plaintiff that that which constituted the negligence of the defendants or their servants was the failure to pro vide the safeguard or security which would have been furnished by logs placed over and upon the blast prior to its being discharged. There was conflicting evidence as to the necessity or propriety of such means of prevention of accident, and also upon the subject' of the effect of such a precaution, even if it had been adopted, it being contended by the defendants that even had the device referred to been used, it would only have resulted in preventing the fragments of material dislodged by the explosion flying upward and not laterally, it being, quite clear that the missile which killed the plaintiff’s intestate was thrown laterally and not upward.

Whether the defendants were negligent in not providing a covering for the blast of the particular description referred to, was made a principal issue on the trial. The learned judge who presided left that issue to the jury in a very clear and careful statement. He left it to them to say whether the defendants, in the exercise of reasonable care and prudence, ought to have provided covering for the blast of the kind and description claimed by the plaintiff to have been the only reasonable and proper one under the circumstances of the case. The omission of the defendants or their servants to do this was, therefore, plainly presented as a ground of the alleged negligence.

But it further appeared in the proofs that the plaintiff’s intestate was not ignorant of what was necessary and proper in the preparation and firing of blasts in underground work. He had been for years employed in making excavations under the beds of rivers, and he had been for three days engaged at work in this caisson, where much blasting was done daily; and it appeared, by the testimony of a witness, that the plaintiff’s intestate had some direct connection either with the preparation or the firing of the particular blast, the explosion of which caused his death. The witness Crowley says that the plaintiff’s intestate assisted him in attaching or arranging the wires connected with the battery which discharged the blast. There was enough in the case to allow the defendants to go to the jury on the question of the knowledge of the plaintiff’s intestate of the insecure condition of the blast, if it were insecure; and to authorize the claim that, with such knowledge, the plaintiff’s intestate assumed the risk to which he was exposed by reason of such insecurity.

At the close of the remarks of the learned judge in charging the jury, the defendant’s counsel requested the court to instruct them that “if the plaintiff knew, or by the use of ordinary observation ought to have known, of the absence .of any appliances to cover the blast, that his continuing in the employment with such knowledge does not entitle him to recover in this action, the risk incurred being one assumed by him.” Hpon the proofs and under the charge of the learned judge as to the imputed negligence, the defendants were certainly entitled to this instruction if it were asked in time. But the court declined to pass upon it, saying: “ I cannot entertain it; I have given due deliberation to all these requests and I will not- entertain any request which should have been handed up. before I made my charge.” It appears that before the learned judge addressed the jury he had asked counsel to hand up whatever requests to charge they might desire to present. Whereupon counsel on both' sides handed tip certain requests in writing. Among those handed up by the defendants there was none to the purport of that which was specifically asked at the conclusion of the, charge to the jury. It was error to refuse to entertain the request and the instruction should have been given to the jury. The only ground upon which the learned judge refused was that it was not asked in time. While it was eminently proper that such requests as counsel desired should have been presented to the court for examination before the final submission to the jury, yet there is no rule of practice which absolutely precludes counsel from asking the court to give additional instructions after it has addressed the jury. That there is sometimes a great abuse of the privilege of counsel respecting the. submission of requests to charge is well known, and'. it is the duty and the disposition of -appellate courts to check and rebuke efforts to’ set traps for the court by requests to charge, unseasonably made. But in this case the. instruction asked for was a most material one, and was evidently presented merely because the court had inadvertently omitted to charge upon a subject which the counsel had a right to expect would have been alluded to without any previous request. . It was not. out' of due season or at all unreasonable that the attention of the court should be called to the particular subject-matter of that single request, The right of counsel to present requests to charge was considered in the case of O'Neil v. Dry Dock, etc., R. R. Co. (129 N. Y. 125). In the opinion of the court in that case, reference was made to Chapman v. McCormick (86 N. Y. 479), where it was held that the denial of the legal right of counsel on the trial of an action to submit propositions bearing upon the action, is the subject of exception £ and it is that rule which the appellant seeks to apply here. In the O'Neil case that rule was reiterated, but wzas held to be inapplicable to that 23ai'ticnlar case in which it ap2)eared that before the judge began his charge to the jury, requests of counsel were handed to him, and that he either charged or refused to charge such requests. Upon the conclusion of his remarks to the jury, counsel .for one of the defendants made further requests, and the judge asked him if he had any others; he then did make other requests, which the judge charged, after which apparently the counsel was satisfied and took his seat. Counsel for the opposite party then made requests to charge which the court acceded to. Then the counsel for the defendant again proceeded to make further requests and the court declined to entertain them, and it was held that the judge did not abuse his discretion for the reason that the counsel for the defendant had liad full opportunity to make all his requests, and had made them so far as he deemed them important both before and after the charge was made; and whether after that he should be permitted to prolong the trial and still further vex the court with his requests, rested in the court’s discretion.

The O'Neil case is not an authority for the contention that the right of counsel to submit requests to charge is absolutely within the control of the judge presiding at the trial; but only for the propo-. sition that where there is an abuse by counsel of his right, it is within the power and discretion of the court to refuse to hear him. There was certainly in this case no attempt either to vex the court, to prolong the proceeding or to get before the jury improper or immaterial matter. It was a vital question in the case, one ivhich should have been submitted; and, for the error in refusing to present it to the jury, the judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.

Van Brunt, P. J., Williams, O’Brien and Ingraham, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  