
    Thomas Scott, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appelant.
    Second Department,
    January 12, 1912.
    Master and' servant—negligence — injury by fall of rock — foreman, errors in judgment — obligations of master — fellow-servant — failure of foreman to use appliances furnished.
    A master is not liable for injuries to a servant caused by the fall of rock during the excavation of a tunnel where the plaintiff,, having twenty-four years’ experience as a driller in tunnel work, called .the attention of his master’s foreman to a crack in the rock, and the foreman said that it was all right to go ahead with the work, 'for the foreman did net deem the situation dangerous, nor give any assurance to the plaintiff that the condition would be changed, or coerce him to continue, the plaintiff being .as well qualified as the foreman to judge of the danger of the situation.
    A master, even when under the duty of inspection, does not guarantee the correctness of his Inspector’s judgment, or insure against errors in judgment on Ms part.
    Where it was the duty of a gang of workmen who had b.een working in the tunnel prior to the plaintiff’s arrival to drag down loose rocks, any negligence on them part in performing that part of the work was the negligence of the plaintiff’s fellow-servants.
    Under the circumstances, the question of a safe place in wMch to work is not involved, as the plaintiff in constructing the tunnel was constantly changing the place as the work proceeded.
    As a master does not warrant the judgment of its foreman, liability cannot be predicated upon the fact that the accident might have been averted if the foreman had used a steam shovel furnished by the master, especially where the plaintiff, a man of large experience, made no request that the shovel be used.
    
      Appeal by the defendant, The Delaware, Lackawanna and Western Eailroad 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 17th day of April, 1911, upon the verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    
      F. W. Thomson, for the appellant.
    
      Sydney A. Syme, for the respondent.
   Woodward, J.:

The evidence in the present instance is not materially different from that presented by the record in a former appeal (Scott v. D., L. & W. R. R. Co., 136 App. Div. 347), though there is an evident effort to meet some of the points suggested in the opinion of this court in reversing the judgment, and it is not seriously questioned, as we understand it, that the same result should follow in this case, except that it: is urged that the Court of Appeals has held a different doctrine in the case of Henry v. Hudson & Manhattan R. R. Co. (201 N. Y. 140), which would of course be controlling here. In the Henry Case (supra) it was conceded that the judgment of nonsuit would have been proper in so far as the evidence merely disclosed that the work under way had produced the place in which the work was being performed, and that the blasters, who were fellow-servants, had failed to clear up the dangerous loose stones, but it was held that, because the evidence disclosed that on the day previous to the accident the defendant’s general superintendent had been told by a workman that the rocks at the head of the tunnel were dangerous and likely to fall, and that this general superintendent had admitted that they did look pretty dangerous and that he would have them removed by nightfall, a different question was presented and one which it was the duty of the court to submit to the jury. In that case the loose stones were not removed, and there was no evidence that the defendant’s general superintendent had taken any precautions to prevent the danger which he had conceded to have been apparent, and the court very properly held that when the defendant, by its general superintendent, knew that one set of servants had so negligently done their work as to occasion danger to a fellow-servant, it is his duty to interpose and take reasonable measures to see that the rules are complied with, the work properly done and the danger removed, citing O’Brien v. Buffalo Furnace Co. (183 N. Y. 317), a case where the defendant’s general manager, admitting that he knew the danger of tamping dynamite with a steel rod, permitted a foreman to use such a rod in tamping dynamite in a pipe, the resulting explosion killing plaintiff’s intestate, who was working with the foreman. There can be no question of the propriety of the rule stated in the cases cited, but no such state of facts exists in the case now before us. It is true that there is some testimony to the effect that one of the workmen engaged in the construction of the tunnel through Bergen Hill, where the plaintiff was injured, called the attention of the defendant’s foreman to the fact that there was apparently a dangerous rock left after the blast of the previous day just before midnight; that the plaintiff had some conversation with this same foreman about a crack in the rock just before the accident happened, and that the foreman told him that it was all right and to go ahead, but it is very apparent from the testimony that the fqreman did not admit that the situation was dangerous, and that he did not give any assurances to the plaintiff that the condition, which was known to him, would be changed. The plaintiff had had twenty-four years of experience as a driller in tunnel work. The work was being carried on in solid rock, and all of the conditions were as well known to the plaintiff as to the defendant’s foreman, and there is nothing in the evidence from which the fair inference may be drawn that the plaintiff was acting under any coercive orders of the defendant. As was said in the case of O’Brien v. Buffalo Furnace Co. (supra), the “statements of the foreman and the superintendent that there was no danger seem no more than declarations of opinion on their part which the deceased might accept or reject as he deemed wise,” and that is certainly as far as the testimony in this case goes. The plaintiff suggested that there was danger of the rock falling; he had as good an opportunity to know and judge of this danger as the foreman, and after a conversation with the latter, in which the latter merely expressed the opinion that the rock would not fall, the plaintiff went on with Ms work as directed. There is not a particle of evidence from wMoh the inference could be properly drawn that the plaintiff was forbidden to make any further investigations, or that he was deprived of any means to ascertain the extent of the danger to which he was exposed. ■Counsel attempts to carry the impression that the plaintiff was urged to hurry up the work, but a reading of the testimony to wMch reference is made only goes to show that the foreman suggested that he wanted to get .the work progressed so that it would he ready for those who were to come ,along on the following day, and there .is nothing to show that the plaintiff was in any manner hindered from taking any and every precaution which the situation should have suggested to a man of Ms long experience in the same line of wnrk. There is some testimony, to he sure, to the effect that the steam shovel was used to dig out projecting rocks of large sbae, and that the foreman alone had authority to direct the action of this steam shovel, but there is absolutely no evidence that the steam shovel had not been employed in fitting the place after the blast, or that all proper effort had not been made to clean up the shattered rock. The most that can be said from the evidence is that there was a crack in the rock:; that it was not wholly severed from its connection with the solid rock in which the work was being carried forward and that the defendant’sforemam, whose general competency is not questioned, expressed the opinion that the rock would not fall. There is no evidence that the foreman was better qualified to judge of the situation than the plaintiff, no evidence that the plaintiff was under any compulsion to go to work or that he had any assurance on the part of the defendant’s foreman that the situation would be changed. There was no failure of inspection if it be conceded that inspection was one of the duties wMeh the defendant owed. There was an inspection by the foreman, whose competency is not in issue, and the foreman reached the conclusion that the rock would not fall, and the plaintiff, with an equal right to determine this question, seems to have agreed with him. Inspection does not amount to a guarantee of the judgment of the inspector; the master does net absolutely insure against errors in judgment, of competent employees,, and unless such, a rule- is to be.- adopted, the plaintiff has failed, to make out a ease. Under the evidence- in this case it was theduty of the day gang to drag down loose rocks and to clear up the- debris,, and any negligence in- the performance of this part of the work was clearly that of fellow-servants. (Henry v. Hudson & Manhattan R. R. Co., 201 N. Y. 140; 142.) Work had progressed for at least five or six hours after-the day gang had departed;, the plaintiff and others, had been using steam drills on the ledge from which, this rock fell,, and the place afforded the plaintiff to perform Ms work was constantly undergoing changes in the progress of the undertaking,, so that the question of a.safe place in wMch to work is not involved in- this ease.. (Henry v. Hudson & Manhattan R. R. Co., supra.) The master clearly had a right to intrust a competent foreman with the details of this work,, and the fact that this foreman may have erred in judgment in respect to the danger to he apprehended from a condition known equally to the plaintiff is not evidence of negligence-on the part of the defendant, and the case- ef Henry v. Hudson & Manhattan R. R. Co. (supra) is; not an authority for the submission of tMs case to the jury..

The rule-of law applyingto-tMs case-is to he found, in King v. Ford (121 App. Biv. 404), and in the.- opinion, of tMs cou-rt on the former appeal and is clearly to he distinguished from the case relied upon hy the. respondent in that in, the- Hmry Case (supra) the general superintendent ef the- defendant had Ms attention called to- the situation and admitted that it looked dangerous- and promised to have the same remedied before nightfall. The plaintiff in that case- went to- work on the following day without notice of the dangerous condition wMch had been produced hy another class of servants, and which danger was known to the defendant’s general superintendent, who had promised to remedy the defect. The negligence in that case consisted of the failure on the part of the defendant to compel one class of servants to properly perform their work when failure to so perform the work, resulting in a concededly dangerous condition, was known to the defendant. Here the defendant’s foreman, acting in entire good faith and in the exercise of his best judgment, so far as the evidence discloses, had no reason to believe that there had been any failure in the performance of the duties of the day gang; he looked at the' crack called to his attention by the plaintiff, and reached the conclusion that it was not dangerous;' the plaintiff, under no compulsion, appears to have accepted that judgment, although he had had long experience .in that line of work, and it is difficult to understand how the defendant could be held to be negligent in the matter without the plaintiff being equally negligent. He knew all that the foreman knew; the defendant. had concededly furnished all of the tools and appliances necessary to the proper performance of the work, and there is not a suggestion that the foreman refused to do anything or that he refused to permit the plaintiff to do anything which might have been necessary to determine the question of safety. It is probably true that if the defendant’s foreman had brought the steam shovel to the spot and made use of it, this particular accident might have been averted, but the question is whether the defendant, having furnished the steam shovel, a competent foreman, competent help and other tools and appliances, is responsible for the failure of its foreman to do this act. ■ Obviously it is not liable for this failure, because it owed no duty to warrant the judgment of its foreman, who might lawfully be intrusted with the details of this work, ahd this is certainly true in this case where the plaintiff had been engaged right along in this work and was aman of large experience, and it does not appear that he made any request for the-foreman to make use of the steam shovel or of any of the other appliances or tools which the defendant had concededly furnished. Unless we are to hold that the defendant is an insurer, there is no foundation for this judgment and it should be reversed.

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

Jenks, P. J., Hirsohberg, Burr and BIch, JJ., concurred.

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