
    Frank Di Vito, Respondent, v. Donato A. Crage and William E. Tench, Appellants.
    
      Negligence — workman injured by a stone falling from an embankment where it was thrown by a previous blast.
    
    Where the evidence in an action brought to recover damages for personal injuries tends to show that while the plaintiff was working for the defendants at the foot of an embankment in excavating and blasting, a stone, which had been thrown into a position near the top of the bank by a previous blast caused by the defendants, became disengaged and rolled down upon him, causing the injuries complained of, a verdict in his favor will not be disturbed.
    Ward, J., dissented.
    
      Appeal by the defendants, Donato A. Crage 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 Niagara on the 25th day of February, 1898, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 25th day of February, 1898, denying the defendants’ motion for a new trial made upon the minutes.
    
      Hazel & Abbott, for the appellants.
    
      D. E. Brong, for the respondent.
   Hardin, P. J.:

In 1895 tlie plaintiff was in the employ of the defendants as a laborer. They were engaged in making excavations for the construction of an electric street railway on the east side of the Niagara river by cutting a bench into the side of the embankment upon which to locate the railway tracks. In order to carry forward the work undertaken by the defendants it was necessary to cut away portions of the easterly bank of the river and remove the same, and to do blasting and work with pick, hoe, shovel and other implements used in the construction of the embankment for the location of the road. Sometime in May the plaintiff was employed by the defendants and continued to work for them down to the-period of time when, on the eighteenth of August, he received the injuries for which he complains. Saturday night, the seventeenth, the forem'an of the defendants insisted that"the plaintiff should, on the morrow, go to the place where the work was being excavated and assist in furthering the purposes of the defendants, although the next day was Sunday, and the evidence tends to show that the foreman of the defendants told the plaintiff that he must appear on that day and pursue the labor or “ you lose your job.” It is alleged that the place where the plaintiff received the injuries was an unsafe and dangerous place, and that the defendants “negligently, carelessly and wrongfully maintained and provided, * * * without due regard to the safety and protection of the plaintiff,” the place where the plaintiff was required to work. It is alleged that while the plaintiff was so engaged, under the direction of the foreman of the defendants, a large quantity of rock, dirt and other heavy substances became detached from some portion of said bank above him and which fell and was precipitated upon the head and body of this plaintiff and which caused him to fall from a certain platform and projection of said embankment upon which he was then standing, down to and upon another platform of said embankment, a distance of about seventy-five feet, whereby this plaintiff suffered many contusions and lacerations of his body, a fracture of his skull, legs and other bones of the body, and suffered serious and severe personal injuries, by reason of which he wTas made sick, sore and lame and confined to his bed for a long time thereafter and was thereby permanently injured.” It is further alleged in the complaint that the plaintiff did not in any manner contribute by his own negligence or carelessness to the injuries which he received.

At the close of the plaintiff’s evidence the defendant moved for a nonsuit upon several grounds specified, which was denied, and an exception was taken. At the close of the whole evidence the defendants moved for a direction of a verdict; that motion was. entertained and denied, and the defendants excepted to the denial thereof.

The trial judge, in his charge, submitted the question to the jury as to whether the defendants wrere guilty of negligence from which the injuries received by the plaintiff occurred, and also the question whether the plaintiff was free from contributory negligence. The evidence is somewhat conflicting in respect to both questions.

The learned counsel for the appellants insist up°n a statement of facts favorable to the contention made by them that the defendants were not shown to be guilty of negligence; they also present a statement of facts from which they insist that the conclusion should be drawn that the plaintiff was guilty of contributory negligence. On the other hand, the respondent’s learned counsel presents a state of facts found in the evidence, from which he insists that the question as to the negligence of the defendants, and the question as to the freedom of the plaintiff from contributory negligence, were proper for the jury to pass upon. We think the verdict is supported by the evidence furnished on both propositions, and that the learned trial judge committed no error in submitting the case to the jury, which he did in a very clear charge, presenting both aspects to the jury, with instructions that the plaintiff had the burden of the ■case on both branches, and that the jury must be satisfied that the plaintiff had successfully borne the burden; that if the case was •evenly balanced the verdict should be for the defendants. We think the charge was sufficiently favorable to the defendants, and that no error was committed by the trial judge in dealing with the requests which were made at the close of the body of his charge.

It is insisted by the appellants that the plaintiff assumed the risks when he entered into the employ of the defendants, and that such .assumption is a barrier to his right of recovery. The rule as to ■assumed risks is quite clearly stated in True v. Lehigh Valley R. R. Co. (22 App. Div. 588), and in cases there cited. It was there held, viz.: “ The rule that the servant takes the. risk of the service presupposes that the master has performed the duties of care and vigilance which the law casts upon him; it only excuses when injury results to the servant from a hazard incident to the nature of the employment, not from a cause which the exercise of proper care ;and prudence on the part of the master would have foreseen and guarded against.”

There was evidence in the case that in the progress of the work the defendants had caused blasts to be made which threw stones at various distances from where the blast was discharged, and some of them up the bank near the top.

The witness Sheldon observed the movement of the stone which struck the plaintiff and caused the injuries. He says, viz.: “ The .stone fell right straight down to the bench and up this way, and went right into where he was stooping over like this (witness indicates), right ■straight off the top to the bench above him, and bounded and went right into where he was stooping over like this. I didn’t watch the ■stone to see where it went. I could not see whether this rock hit ■anything before it hit this bench of rocks by his side. It did not that I could see. I had no other business at all than this of attending to that museum at those times. I was there daily. Immediately preceding this accident I was right there every morning until night. I observed each day the top of the bank and the bank and these workmen engaged in this excavation. They were blasting all the time; I run away from blasts from time to time. When blasts were made there was nothing put over them to hold the stone down that I could see. Ho planks or brush or anything. When blasts were exploded, rocks flew in all directions. Sometimes the blasts, if they could get it out that way, they would dodge into the river, sometimes they would go clean over into Canada, and sometimes they would go over the whole bank and till the yards and on top of the buildings and roofs and break shingles.”

This witness adds that he had seen rocks thrown through a woman’s chair on Whirlpool street and through the field, and that they dropped “ on the edges of the bank and wherever they happened to light.”

The witness Cosano testified that he was on top of the bank shortly before the accident, and that he observed right on top of the bank stone “ where they shoot them blasting and you see the stone flying all over and some of the stone stop way inside of the bank and some stop right on the edge and all over most every place, and I see lots along the edge of the bank, and I see lots in field and all over. Yon can tell the difference of the kind of stone from the old one and fresh new one. I have seen them blast there different times, and seen the stones fly. There was two or three times and I see when the blasting comes the stone fly up high and all over and on the other side of Canada and all over the place. * * * I never saw anything put over the rocks when these blasts were exploded to hold them down.”

The witness Collalo testified, viz.: While looking at the top of the bank I saw a stone fall in the direction where Frank stood. That stone fell from the edge of the bank.”

There was some evidence tending to indicate that the bank was not cleared off after the blasts had occurred. .

We think there was sufficient evidence given to warrant the jury in finding that one of the stones which were cast up by the blast became disengaged and rolled down the bank and caused the injuries -which the plaintiff received.

Appellant’s learned counsel calls our attention to Ruppert v. Brooklyn Heights R. R. Co. (154 N. Y. 90). This case differs quite essentially from that. Here the circumstances were detailed in the evidence, and the inferences which the jury apparently drew seem to have been reasonable from the testimony before them. In the case referred to it was said that “ If, upon the testimony, it is just as probable that the injury resulted from the act of the other parties engaged in paving as from that of the defendant, the plaintiff cannot recover.” In that case it appeared that the stone which caused the injury differed in kind from those used by the defendant and was of the same kind as those being used by other parties in paving streets in the vicinity, and which they carted over the street in question. Therefore, the inference drawn by the jury was not supported by the evidence. We see nothing in that case which aids the contention of the appellants. We think the learned trial judge, in his charge, presented the rules of law applicable to the case, and his review of the evidence is quite satisfactory, and the verdict of the jury accords with the inferences that were properly deducible from the evidence. (Mead v. Parker, 111 R. Y. 262.)

We have not overlooked the contention of the appellants That there is no evidence in the case that this stone was ever at any time upon the top of the bank,” and the defendants’ request that'the court charge to that effect. In response to the request made in that regard the court observed: I decline to charge that; that is, I leave that as a question of fact for you gentlemen on that subject. I read the evidence of one of the witnesses on that subject and stated what Hr. Sheldon testified to. You will remember that I leave that for the jury.” We think the exception taken to that part of the charge presents no error.

We think the failure of the plaintiff to use the rope at the time he received the injuries had no causal connection with the accident.

The verdict was moderate when considered in the light of the injuries sustained by the plaintiff, and no criticism or question is made in respect to the amount thereof.

Follett and Adams, JJ., concurred; Ward, J., dissented.

Judgment and ordei affirmed, with costs.  