
    Guissippe Mancuso, as Administrator, etc., App’lt, v. Cataract Construction Company, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 21 1895.)
    
    1. Master and servant — Risks.
    Where the calamity appears from the evidence to he a casualty from a cause unforeseen and not within reasonable apprehension, it is within the hazards incident to the service assumed by the employe.
    2. Same — Saee place.
    The company was held not liable for a failure.to furnish its employe a safe place in which to work.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.
    
      Charles Oishei, for pl’ff; Ely & Dudley and Morris Cohn, Jr.r for def’t.
   Bradley, J.

— The plaintiff’s intestate, while engaged as employe of the defendant* in a pit which was being excavated, was killed by the explosion. The plaintiff- charges that the death was occasioned by the negligence of the defendant. The defendant’s method of making the pits to take off the earth from the surface down to the rock, then with steam apparatus drill holes to the depth of several feet, insert dynamite cartridges, and by their explosion break up the rock. The explosion in the pit in question had taken place three or four days before the accident. The plaintiff’s intestate and another employe were directed by the foreman of the work to go into the pit and take out the broken stone. In proceeding to clean it out they found a block of stone too large for them to move and too hard to break up with their hammers. They were then directed to drill three holes into it to receive dynamite. They drilled two holes about ten inches in depth, and were proceeding to drill the third one, and had gone to the depth of about six inches when the explosion occurred, causing the death of the plaintiff’s intestate, but, so far as appears, without injuring his comrade in the work. The explosion was in some manner caused by the operation of their drilling, and it is evident that some of the dynamité used for the blast a few days previously remained unexploded. But it does not appear to have been attributable to the negligence of the defendant.

There is no evidence tending to prove that the apparatus or machinery by the means of which the previous blast was produced was in any respect defective or unsuitable for the purpose. The only question is whether the defendant is chargeable with negligence as for failure to furnish the plaintiff’s intestate with a safe place to work. It is the general rule that the master is required to use reasonable care in that respect. Before those workmen proceeded to drill they cleaned off the stone upon which they operated. Nothing was then visible to indicate that there was any dynamite there, or any place for it in the stone on which they were at work. Nor does there seem to have been any reasonable ground for apprehension that there was any. It is urged that no inspection followed the prior explosion to ascertain whether any dynamite remained unexploded in the pit. That certainly was a prudent, precautionary thing to do, and the evidence on that subject is very vague, and too uncertain to show that it was not done. But, however that may be, the decedent was one of several employes engaged generally in the work of making the pits. The details of the service were under the management of the defendant’s foreman, who directed the distribution of the work among the workmen employed. He was their co-employe. They assumed the ordinary hazards incident to the service, including these arising from his negligence as such co-employe. Loughlin v. State, 105 N. Y. 159 ; 6 St. Rep. 826; Hussey v. Coger, 112 N. Y. 614; 21 St. Rep. 848; Cullen v. Norton, 126 N. Y. 1; 36 St. Rep. 359. The pit was about ten feet in depth and. about eight feet in diameter. The situation within it was open to view from the surface of the ground above. It may, however, be assumed that if there had been any reasonable ground to apprehend danger in the performance of the work assigned to the decedent in the hole or pit, the question wbould -have arisen whether by the direction to go in there and do the work the foreman-may not have been placed in the relation of master to him. Crispin v. Babbitt, 81 N. Y. 516; Pantzar v. Mining Co., 99 id, 368; McGovern v. Central Vt Railroad Co.,. 123 id, 280 ; 33 St. Rep. 416 ; Hogan v. Smith, 125 N. Y. 774; 35 St. Rep. 870. So far as the facts are disclosed by the evidence, the existence of any danger in the performance of - the work where and in which the decedent was at the time engaged could not by the exercise of ordinary care have been ascertained or apprehended. And in view of all the circumstances, as they appear by the evidence, the calamity seems to have been a casualty from a cause unforeseen and not within reasonable apprehension. It was within the hazards incident to the service assumed by the employe. The nonsuit was therefore properly directed. The motion for a new trial should be denied.

All concur.  