
    Berardina Fioranza, as Administratrix, etc., of Antonio Fioranza, Deceased, Respondent, v. Rinehart & Dennis Company, Appellant.
    Second Department,
    November 13, 1914.
    Master and servant—negligence — death of employee by explosion of dynamite — acceptance of position with implied representation of capacity—evidence.
    Where, in an action to recover for the death of plaintiff’s intestate, who was killed by an explosion of dynamite while engaged in blasting for the defendant, it appears that the decedent recommended himself for and accepted the dangerous position, with implied representation of capacity, and with some previous experience, his administratrix cannot claim that he was negligently left uninstructed in the use of appliances.
    Held, on all the evidence, that a judgment in favor of the plaintiff should be reversed and a new trial granted.
    Appeal by the defendant, Rinehart & Dennis Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 22d day of April, 1914, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on or about the 21st day of April, 1914, denying the defendant’s motion for a new trial made upon the minutes.
    The action is to recover for the death of plaintiff’s intestate, who was killed by an explosion of dynamite while engaged in blasting for the defendant.
    
      James J. Mahoney [F. Wright Moxley with him on the brief], for the appellant.
    
      Humphrey J. Lynch, for the respondent.
   Thomas, J.:

The testimony of Bolton, the superintendent, is to the effect that Fioranza recommended that he was competent to act as powder man, and that he did act for some months as such, and that he was superior to De G-uilio. Two of the three fellow-servants testified that they had seen him engaged in deep-hole blasting on some occasions, although they seek to make them exceptional. At least, after De G-uilio left,. Fioranza four days before the accident became the powder man, and thereby-accepted a dangerous position with implied representation of capacity, certainly with some experience, and, as Bolton says, without explicit contradiction, Fioranza recommended himself. Under such circumstances the representative of Fioranza cannot be heard to charge that he was negligently left uninstructed in the use of the pole. If the pole was dangerously used inFioranza’s presence he, as the head of the laborers at the immediate work, should have stopped it, as he had full opportunity before the explosion of observing the handling of the pole. The record does not show that the pole was rammed or jammed against the powder, as the exhibitions of the witnesses are not described. Nor does it appear that such use of the pole as was made had in the past been found to be dangerous. Brown, for the plaintiff, said that the dynamite is liable to stick, and that in such case “ we try to ease it down past this stone,” and that he would not ram it. The record does not show that the men did. ram the powder. Kincaid said that he had not sprung horizontal holes or seen it done, although he had heard of it, while Brown said that it was not customary. But on the great work in question it was customary to spring horizontal holes and blow them, and there is no evidence that there or elsewhere explosions had shown that the practice was dangerous to follow. If the master furnished Fioranza incompetent men, and they, without his negligent failure to supervise them or to correct dangerous and negligent methods of handling the pole, caused the injury, another question would arise. But that was not the theory of the submission.

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., Oarr, Stapleton and Putnam; JJ., concurred.

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