
    Maria A. Pagnillo, as Administratrix, etc., of Guiseppe Pagnillo, Deceased, Respondent, v. The Mack Paving and Construction Company, Appellant.
    Second Department,
    April 4, 1912.
    Master and servant — negligence — death by explosion of dynamite — rock drilling —proof raising question for jury.
    Action against a master to recover for the death of a servant, who was killed by an explosion of dynamite while operating a rock drill. The question in issue was as to whether the decedent was drilling the hole vertically and parallel to holes previously drilled or whether the superintendent was negligent in permitting the hole to be drilled diagonally so as to run into an adjoining hole containing dynamite placed there the day before. Evidence examined, and held, that the direction in which the hole was drilled and the presence of the dynamite in an adjoining hole were questions for the jury and that a verdict for the plaintiff should he affirmed.
    Appeal by the defendant, The Mack Paving and Construction 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 9th day of March, 1911, upon the verdict of a jury for $12,500, and also from an order entered in said clerk’s office on the 10th day of March, 1911, as amended by an order entered on the 20th day of March, 1911, denying the defendant’s motion for a new trial made upon the minutes.
    
      Paul Grout [Edward M. Grout, Charles B. La Voe and James I. Cuff with him on the brief], for the appellant.
    
      Michael J. Tierney [Frederick P. Close with him on the brief], for the respondent.
   Thomas, J.:

On December 29, 1909, Pagnillo and Mascerello, defendant’s servants, operating a drill, were killed by dynamite exploding through or near the hole they were making, which at the time was a few inches in the rock. The first question is, how did the drill cause the explosion, and where was the dynamite % The defendant indicates that the drill, driven vertically, came in contact with unexploded dynamite in the rock. But there is no evidence that explosive material had been so placed as to he met by a vertical drill. The plaintiff contends that the drill was not driven vertically but at an angle so as to intersect another loaded hole. So the main issue is,, was the drill driven vertically, so that it could not reach or affect the other hole, or was it driven obliquely so as to discharge the other, which the plaintiff’s evidence shows was loaded, and which defendant’s evidence shows Was not loaded ? There were two Italians, G-rasso and Castallucci, working near the place where the drillers were set to work by the foreman, who uncontradictedly pointed to the place for drilling, and both of them testified that the hole, for convenience called No. 6, ran at an angle towards an existing hole, called No. 5, estimated to have been seven or nine or ten inches or a foot away, and, as G-rasso stated, hole No. 6 had been run during from five.to seven minutes to a distance variously estimated from seven to eleven inches, whereupon there was an explosion in hole No. 5.- One Gelorimo, the regular driller, was, away at the time, but on the same day examined and found the one hole running into the other, with a crack in the rock between the two, and both holes empty. The coroner examined the holes the .day after the accident and found a deep, straight hole with part of the rock blown away, and another hole, seven to ten inches away on the surface and seven to ten inches deep, slanting into it, so that he could see that the two met and that there was a slight opening from the one to the other eighteen to twenty inches below the top of the straight hole, although the drill had not gone through, and that around both holes were black marks. This evidence is opposed by that of the foreman that the new hole was straight, was five or six inches deep, about twenty-two inches from hole No. 5, that the explosion was on No. 6, that there was no mark on No. 5, and that the holes did not run together. This statement is corroborated by Carey, who examined two days after the accident; by Hogan, the walking boss; by Adams, a civil engineer; by Sherman, the general manager "of defendant, who examined imperfectly from the top of the bank. It cannot be said that the finding that there was a connection between the holes is against the weight of the evidence. But the defendant further urges that the fifth or deep straight hole was not loaded, that it was drilled the day before after four holes had been discharged, that there were no explosions on December twenty-ninth before the accident, and that No. 5 was not loaded until some days afterwards, when it was blasted. The plaintiff’s evidence, including the testimony of the regular driller, is that on the previous day two holes were drilled, and one, No. 5, started; that on December twenty-ninth No. S was finished, the dynamite warmed in water, the three holes loaded, and an attempt made to discharge them, which was successful as to two, while one (No. 5) remained undischarged. Here are witnesses arrayed against witnesses, who claim to have seen what happened, and those, also, are called who by then testimony state or indicate that there could have been no discharge, save at the time of the accident, as only one explosion was heard; that hole No. 5 was not completed on December twenty-ninth, as the pipes whereby the drill was run were frozen and required a long time to make ready; that no dynamite was given out; that there was no mark of explosion around hole No. 5, although .the coroner states that it was black thereabouts. The credibility of the witnesses, judged by aid of physical facts, was for the jury, and, although a contrary conclusion would have been justified, the judgment is not affronted by the finding that hole No. 5 was loaded and discharged while the drill was operating. But how could the drill explode the dynamite*? The evidence, as we have seen, justified the finding that the drill penetrated hole No. 5. If it did so and came in contact with .a charge therein, a competent cause for an explosion is not only found, but recognized by the defendant’s experts, and the plaintiff’s expert asserts, while defendant’s experts deny, that sufficient force of the drill towards hole No. 5 could discharge it. But it is also answered, how could the dril entering hole No. 5 so near its top -come in contact with dynamite sunk to the bottom of a hole some four feet deep ? The plaintiff answers the question by evidence that the earlier discharge of th e two holes on that morning could lift the dynamite in hole No. 5 so far towards the top as to bring it within reach of the dril in hole No. 6, although defendant rejects this. In this connection there' should be considered the evidence that the length of hole No. 6 would not alow it to reach to hole No. S, and that little disturbance of the rock about it was found. But in estimating distances witnesses are so falible that a conclusion can scarcely rest upon such judgments, and what disturbance of adjacent material would follow an explosion that could make its way through two Openings may not be so muqh a matter of theoretical statement as to rule the decision. When the fact is sufficiently established, as it is by the finding in this case, that a drill penetrated a hole containing dynamite, and an explosion emptying the hole followed, the judgment that the dril influenced the substance to explode is so logical that it is not disturbed by theories that dispute the possibility or difficulties that embarrass or antagonize the conclusion. If the superintendent without inspection permitted such operation, the jury were warranted in finding that 'his omission Was negligent. The counsel for the plaintiff is criticised by appellant for his presentation of his case to the jury. There are some references in his remarks that approach the limit of legal discussion, but considering the disposition made of the matter by the trial court they probably did not affect the jury to the defendant’s disadvantage.

The judgment and order should be affirmed, with costs.

Present — Jenks, P. J., Hirschberg, Thomas, Oarr and Rich, JJ.

Judgment and order unanimously affirmed, with costs.  