
    Rose M. Colligan, as Administratrix, etc., of James H. Colligan, Deceased, Respondent, v. The City of New York, Appellant.
    Second Department,
    February 21, 1913.
    Master and servant—negligence—workman in shaft killed by falling stone — evidence — duty of master to provide safe place to work.
    In an action to recover for the death of plaintiff’s intestate who, while engaged in the construction of a shaft, was struck on the head by a falling stone from the side of the shaft and fatally injured, it appeared that during the year that the shaft in question had been under construction stones had from time to time shot out from different points in the shaft without any apparent reason; that the defendant, in order to protect its employees, had lined the shaft with steel sheeting; that it was customary to thus protect the shaft once a week at a time when from eighteen to twenty feet of the wall of the shaft was exposed; that at the time of the accident the steel sheeting was about twenty-six feet from the bottom of the shaft and that the distance at various other times when the steel sheeting had been placed therein varied from seventeen to thirty-two feet; that plaintiff’s intestate had been instructed to quit work at any time if he apprehended danger. The plaintiff claimed that the defendant was negligent in not having this lining placed so as to prevent the falling of the stone which hit her intestate.
    Evidence examined, and held, that a judgment for the plaintiff should be reversed.
    The common-law rule that the master must use reasonable care to provide a safe place in which the servant is to perform his work does not apply where the character of the place is undergoing constant change in the progress of the work.
    Hibschbbk& and Rich, JJ., dissented.
    Appeal by the defendant, The City of New York, from a judgment of the Supreme Court hr favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 20th day of February, 1912, upon the verdict of a jury in favor of the plaintiff for $11,000, as resettled by an order entered in said clerk’s office on the 18th day of March, 1912, and also from an order entered in said clerk’s office on the 20th day of February, 1912, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Clarence L. Barber [Terence Farley and Archibald R. Watson with him on the brief], for the appellant.
    
      R. H. Barnett [Benjamin W. Moore with him on the brief], for the respondent.
   Woodward, J.:

The plaintiff’s intestate was one of a gang of twelve or fifteen men engaged in the construction of a shaft in connection with the Catskill water works at Cornwall, 1ST. Y., on the 10th day of January, 1911, and at about ten o’clock in the evening of that day, about two hours before the end of the eight-hour shift, he was struck on the head by a falling stone from the side of the shaft and fatally injured. This stone weighed several hundred pounds, and the fall was due to a cause which is not explained. It appears that during the year that this shaft had been under construction prior to the accident, stones of various sizes had from time to time shot out from different points in the shaft, sometimes from the bottom and at other times from the sides, accompanied by loud noises like the report of a pistol or more or less heavy blasts. These pieces of stone would, without any warning, suddenly blow out from the face of the rock, leaving a whitish powder to indicate the point at which they had severed from the granite rock through which the shaft was being constructed, but no amount of examination appears to have disclosed any sign by which their action could he anticipated. During the early stages of the work the shaft appears to have been shored up or lined up with timbers, but these proving ineffectual to protect the lives of those working below, the device was hit upon of using steel rings around the circle of the shaft, and bolting sheet steel to these rings and filling in the space between the jagged rock walls and the sheet steel with wood and other refuse. The drillers and muckers would work until the shaft had been sunk from eighteen to thirty-five feet below the steel lining, when the drilling machinery would be removed, scaffolding would he constructed, and new sections of steel lining would he put in. These were carried down to within six to ten feet of the rough bottom of the shaft, and then the scaffolding was removed, the drills brought back down from the head of the shaft, and the drilling and blasting would go forward for twenty feet more or less. The shaft at the time of the accident had reached a depth of about ten hundred and seventy feet, and was to reach a depth of eleven hundred and fifty feet at its completion. While the progress of the work varied, the average progress appears to have been at the rate of about forty-five feet per month, practically one-half of this time being devoted to the work of putting in the protecting lining. The principal contention of the plaintiff is that the defendant was negligent in not having this lining placed so as to prevent the falling of this particular stone which hit her intestate and killed him. The distance from which the stone fell is uncertain. The witnesses vary in their estimates from twenty-three to thirty-five feet above the floor of the shaft, and the probabilities appear to be that it was in the neighborhood of twenty-five feet, for the evidence strongly preponderates that the steel sheeting was down to within twenty-six or twenty-seven feet of the bottom of the shaft at the time of the accident, and no one suggests that the stone came from a point above the lowest point covered by the steel.

The theory on which this case has been presented is that the defendant had, in prosecuting the work, established the custom of lining down the shaft about once a week, and at a time when from eighteen to twenty feet of the wall of the shaft was exposed below the lining, and the alleged negligence is predicated upon the alleged fact that the work, at the time of the accident, had been going forward for about two weeks, and that there was a distance of twenty-five to thirty-five feet between the bottom of the steel lining and the floor of the shaft, and there is some testimony in the case to the effect that the plaintiff’s intestate, who was a foreman of the gang at work at the time of the accident, went to the defendant’s timekeeper at about eight o’clock in the evening of the day of the accident, and requested the timekeeper to telephone to one Harrison, the active superintendent of the work, and to say to him that all the men in the shaft were “kicking” and suggesting that the tools be withdrawn and the steel work be put in. It is claimed that the timekeeper conveyed this message, and that Harrison responded that they should go ahead with the group of holes then under way, and that he would see to it that the next shift put in the steel lining. Both Howard, the timekeeper, and Harrison, the superintendent, deny that any such conversation took place on the evening of the accident, and the credence to be given this story rests entirely upon the testimony of one Scott, to the effect that about two hours before the accident he heard Howard have a telephone conversation with Harrison, and that Howard said: “ ‘Mr. Oolligan said he ought to have more steel in the shaft.’ He said the men were kicking in the shaft,” and that Harrison responded: “ ‘ Get the line drilled up,’ and he would see that the next shift put iron in, if it was finished.” Just how Scott, assuming him to have been present with Howard, could be able to testify as to the response of Harrison, is not clear. Harrison says he had no such conversation; Scott does not testify that he was familiar with Harrison’s voice, and that he identified it; he says Howard rang the telephone bell, then waited, and that a voice called “ hello ” and then he goes on to narrate what Howard said and what Harrison said in reply. Neither Howard nor Harrison are interested in a legal sense in this case, and so far as this story entered into the consideration of the jury, it is unworthy of any serious consideration. It is proper, of course, for a person identifying a voice with which he is familiar to testify to an admission, or to any material fact, but here there is nothing to show that the witness was familiar with Harrison’s voice, or that he was in any position to hear the voice distinctly, and Howard says Scott was not present at any such conversation; that no such conversation took place, and Harrison is equally clear that he had no such conversation, and it is unthinkable that two men, in no wise impeached, having no personal interest in the matter, would commit perjury for the sake of saving a municipal corporation from liability in a case of this character. A verdict based upon any such testimony as this is so obviously against the weight of evidence that it should not be permitted to stand, and this conclusion is strengthened by the fact that Scott is not sure that he was not mistaken as to several of the details of the alleged acts of Howard in ringing the telephone, etc., while the undisputed evidence is that the telephone was so arranged that the witness could not have heard any bell in making a call upon Harrison at his home, he being located on a party line and the central office being called by merely removing the receiver.

But upon the conditions existing in this shaft. The overwhelming evidence is to the effect that the steel sheeting, at the time of the accident, was only about twenty-six feet from the bottom of the shaft, and that the distance above the floor of the shaft, at the various times during the progress of the work when the drilling had been suspended to put in new lining, varied from seventeen to thirty-two feet by actual measurements, as shown by the diaries kept by the engineers, who were called upon to keep these records, and it is well settled that measurements of this character must prevail over varying estimates, where there is nothing to impeach the testimony. (Truesdell v. Erie R. R. Co., 114 App. Div. 34, 39.) These figures indicate an average of about twenty-seven feet at the time of these several extensions, and in the case at bar the shield was only about twenty-six feet above the flooring, so that upon the point of the custom of making changes the evidence is against the contention of the plaintiff. No one claims that there was anything to indicate that this particular piece of rock was going to shoot out from the side; there is not a particle of evidence that there was anything to indicate any special danger from the conditions existing in the shaft at' the time or just before the accident, and the story of the plaintiff’s intestate leaving the shaft at eight in the evening and going to make a complaint is decidedly improbable. But if it be assumed to be true, it is not pretended that Harrison promised to do anything to change the lining until the next shift, some four hours later, and the testimony of Harrison is absolutely undisputed that he had instructed Oolligan, plaintiff’s intestate, to quit work at any time if there was danger to be apprehended from the continuation of the work, so that it must be clear that if Oolligan had not been satisfied to go on with the work up to the time of the next shift of men, he was at liberty to call a halt on the work.

Of course the common-law rule that the master must use reasonable care in providing a reasonably safe place in which the servant is to perform his work, has nothing to do in a case of this kind, where the character of the place is undergoing constant change in the progress of the work. (Citrone v. O’Rourke Engineering Const. Co., 188 N. Y. 339.)

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

Burr and Thomas, JJ., concurred; Hirschberg and Rich, JJ., dissented.

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