
    Richard F. Hutchinson, Plaintiff, v. Charles F. Parker & Co., Defendant.
    
      Negligence—assumption by an employee of the risks incident to the service.
    
    An employee of a contractor, engaged in blasting and removing rock, who knew that it was not an uncommon thing for unexploded dynamite to remain in the drill holes after the discharge.'was, while employed in clearing and grading the-surface after an explosion had taken place, injured by the explosion of a cartridge, which was struck by the pick of a co-employee, who, had he been more-vigilant and cautious, would not have caused the explosion.
    
      Held, that, although the case did not warrant a finding that the injured employee-had not exercised such care and caution as a prudent man would employ for the safety and protection of his own person, yet that he, knowing the danger incident to the employment, assumed the risks thereof, and was not entitled to> recover against his employer
    Motion by the plaintiff, Richard F. Hutchinson, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the defendant, rendered by direction of the court after a trial at the Niagara Trial Term.
    
      D. E. Brong, for the motion.
    
      A. K. Potter, opposed.
   Hardin, P. J.

Defendant, a foreign corporation, on the • 19th day of February, 1897, was engaged in deepening a section of the Erie canal at the city of Lockport, and in the course of the work thus being carried on by the defendant, for the purpose of breaking and shattering the rock in the bottom of the canal so as to render the same portable, the -defendant used powerful explosives, consisting principally of dynamite in the form of cartridges, large numbers of which were inserted in holes drilled in said rock for that purpose, and were calculated to be exploded at one and the same time by means of an electric current connected with such cartridges. The plaintiff, on that day, was ■& laborer in the employ of the defendant. The plaintiff was attached to, and at work in, what is known as the grading gang. The business of that gang was to follow the mucking gang and clear and grade the surface after the explosion had taken place and the mucking gang had passed along, and finish up the work to be performed on the part of the canal where the explosion had taken place. Next to and at work with the plaintiff was one Baxter; they were working and talking together. * * * Baxter was using a pick and I (plaintiff) was using a shovel.” There was evidence tending to show that there was no other person using a pick near the hole but Baxter, and that he and the plaintiff were right over the hole, and that by a blow delivered to an unexploded cartridge an explosion was produced, ■which resulted in killing Baxter and doing to the plaintiff the injuries for which he complains in this action. Plaintiff, in his request to go to the jury, made a statement of eight propositions, which appear in the .case at page 200 et seq.

The trial judge was informed that a prior action brought by the administratrix of Baxter against the same defendant had been tried, and .a motion made in that action for a new trial after the plaintiff had received a verdict, and that upon a determination of that motion an opinion had been prepared by the judge before whom the cause was tried, which was to the effect that the plaintiff in that case was not -entitled to recover; and as the reasons stated in that opinion aré very applicable to most of the questions presented in the case now before us, that opinion, so far as it relates to the. questions involved here, is deemed satisfactory.

It is contended in behalf of the plaintiff, however, that the evidence in this case relating to the competency of Banks, the superintendent, and to the alleged intemperate habits of Leonard, and as to the character of some of the materials furnished by the defendant in respect to the blasting of rock, present questions which were not in that case. Upon a careful reading of the evidence in this case it is not apparent that there was any in competency on the part of Banks or Leonard which produced, or tended to produce, the injuries of which the plaintiff complains.

The evidence indicates that the plaintiff knew that it was not an-uncommon thing for some of the holes prepared for. dynamite to remain with the unexploded dynamite therein after the use of the battery in discharge of the dynamite that had been set in the numerous holes; and that the evidence indicates that the plaintiff was aware of the dangerous nature and character of dynamite and the necessity of being cautious in approaching the unexploded holes. If the plaintiff and -Baxter liad been more vigilant and cautions in approaching the place where there was unexploded dynamite, the injury of which the plaintiff complains would not have occurred. The evidence tends strongly to show that Baxter was careless and negligent in that regard. Such carelessness and negligence was that of a co-employee, which apparently produced the injuries of which the plaintiff complains. The plaintiff had knowledge of the dangerous character of the explosives that were being used, and he had the means of knowing the dangers incident to the non-discharge when the battery was used, and it is quite apparent, therefore, that he assumed certain risks thereby. (Crown v. Orr, 140 N. Y. 452.)

The fatal blow was struck by Baxter which caused the discharge, of the unexploded dynamite, and that blow was struck and produced the discharge by reason of the careless act of Baxter. Baxter was a fellow-servant of the plaintiff, and his negligence being the proximate and immediate cause of the plaintiff’s injuries, the plaintiff is not in a situation to recover of the defendant. (Murphy v. B. & A. R. R. Co., 88 N. Y. 146; Laidlaw v. Sage, 158 id. 73.)

The learned counsel for the plaintiff calls attention to Kranz v. Long Island Railway Company (123 N. Y. 1). We think that case differs from the one in hand. There a trench was opened for the purpose of receiving laborers, and the intestate occupied that trench by direction of the defendant, or its servants; and as that trench was not so constructed as to be safe it was held that the intestate had a right to assume that it had been made safe, and that whether the defendant, upon the facts disclosed in that case, had been guilty of negligence was a question of fact which should have been submitted to the jury.

The evidence in this case would not warrant a finding that the defendant had not exercised such care and caution as a prudent man would take for the safety and protection of his own person. (Kuhn v. D., L. & W. R. R. Co., 77 Hun, 389; Scherer v. Holly Mfg. Co., 86 id. 37.)

The plaintiff knew he was in a hazardous business, and had he exercised greater care and caution it is quite apparent that the injuries which he received might have been avoided. As we have before said, he assumed such risk as was fairly incident to the business in which he was engaged. (Crown v. Orr, 140 N. Y. 450; Huda v. American Glucose Co., 154 id. 479; Knisley v. Pratt, 148 id. 372; Graves v. Brewer, 4 App. Div. 330; Renninger v. N. Y. C. & H. R. R. R. Co., 11 id. 568.)

The plaintiff’s exceptions should be overruled and the motion for a new trial denied, with costs, and judgment ordered for the defendant on the verdict, with costs.

Adams and McLennan, JJ., concurred ; Follett, J., dissented; Spring, J., not sitting.

Plaintiff’s exceptions overruled and motion for a new trial denied, with costs, and judgment ordered for the defendant on the verdict, with costs. 
      
       The following is the opinion referred to:
      Spring, J.;
      The plaintiff’s intestate was killed while in the employ of the defendant, who ■was fulfilling its contract with the State in deepening the Erie canal through the city of Lockport. The performance of the contract required the breaking up aná removal of solid rock by means of cartridges containing high explosives. The manner of doing the work was to drill holes seven to eight feet in depth into this rock, covering a considerable space, and then to charge each of these holes with a cartridge and to fire it off by means of electricity generated from a battery provided for that purpose. Thirty to forty of these holes were drilled for each touching off, all connected together and with the battery, and the explosives were of so high a grade that it. was followed in each instance by a terrific severing and upheaval of the rock composing the bed of the canal. In this perilous work it seems to have been unavoidable that some of the cartridges would fail to explode, and covered as they were with the debris, it was very difficult to discover them. The drilling and blasting were under the charge of a foreman named Leonard. For upwards of twenty years he had been engaged in a similar work and on a large scale, and often as foreman, and was competent for the business, and was well recommended to the defendant for his skill and efficiency, so that the qxiestion of his ability to discharge his duties was not submitted to the jury. After each explosion it was the duty of the foreman to go over the upheaved rocks and ascertain and note any cartridges discoverable that were undischarged. Leonard apparently fulfilled this duty after the blast in question, hut it is evident that at times the closest inspection would fail to reveal those hidden perils. After the blasting a gang of 200 or 800 men designated as the muckers came along and removed the largest pieces of the rock, and any unexploded cartridges they found were taken out, and sometime after this another gang of men, called the levelers or graders, removed the balance of this loosened rock. These men used picks to loosen up these stones which were wedged together by the force of the upheaval and by their own weight, and there was great hazard in this work, as a stroke from a pick on an unexploded cartridge or chunk of dynamite would be followed by a discharge. The plaintiff's intestate belonged to the gang of levelers or graders, and had been employed on the work for at least two months. The finding of unexploded cartridges and pieces of dynamite sticks were daily occurrences, and the men generally were cautioned to watch out for these perils, and the decedent knew the dangers incident to this work and must have known that these cartridges existed undischarged after nearly every blast.
      On the day in question the intestate Baxter was engaged with his fellow-workmen composing the graders’ gang in picking out these loose stones, when one of the cartridges exploded, causing a terrific upheaval, killing Baxter and injuring several of the men employed with him.
      The mucking gang and the graders’ gang were under the supervision of different foremen, and were in a measure independent of each other, although the men composing the two gangs were interchanged somewhat. The case was submitted to the jury on the theory that it was a question for the jury to determine :
      
        First. Whether the defendant fulfilled its duty of furnishing a safe place for the intestate to work, and
      
        Second. The corollary of this proposition, whether or not Leonard properly inspected the results of his blasting for the purpose of discovering and locating any undischarged cartridges that were quite certain to be left after he had fired off the circuit connected with the battery
      While there was a charge made that the electrical appliances used in this blasting were defective or inadequate, yet the proof warranted no such inference, and certainly no negligence can be attributed to the defendant on account of the failure of these instruments to cause every cartridge to explode. The officers of the defendant purchased their explosives and appliances of well known and reputable firms dealing in these supplies, and the evidence unquestionably established their excellence and sufficiency for the purpose designated. Whatever there was to make the place dangerous was due to the prosecution of the work.
      The bed of the canal in and of itself was a safe place, hut the breaking up of the solid rock and piling it up, covering undischarged cartridges, made the prosecution of the work by the men cleaning away these rocks dangerous in the extreme.
      Was the defendant responsible for this condition to the extent that it comes within the compass of the rule requiring it to furnish a reasonably safe place for plaintiff's intestate and his fellow-workmen ?
      The distribution of the men was left to the several foremen. Whatever division there was into gangs was made for convenience and to carry on the work more advantageously. None of the labor required skilled men. It was simply clearing away the debris after the explosion, and the evidence unmistakably establishes that the workmen must have possessed as much knowledge of the perils •connected with the business, and of the existence of the dynamite sticks and unexploded cartridges, as the foreman or the most skilled expert. They were ■ seen daity, and the plaintiff's decedent, in the two months in which he was engaged in this hazardous employment, had abundant opportunity to acquaint himself with all the dangers attending the carrying on of the work.
      This unfortunate accident happened, therefore, not from any failure to furnish adequate appliances for the prosecution of the work, and not from any omission to engage experienced men in charge. If any negligence existed it was in the failure to carry out the details of the work properly, and for that the master is not liable. (Hogan v. Smith, 125 N. Y. 774; Cullen v. Norton, 126 id. 1.)
      The grade of the cc -servant directing the work does not have any bearing in the determination of this question. (Loughlin v. State, 105 N. Y. 159; Connolly v. Maurer, 6 Misc. Rep. 98; Hussey v. Coger, 112 N. Y. 614.)
      It is the nature of the work done, “ the character of the act” which constitutes the test, not the man who does it.
      The plaintiff’s intestate knew he was in a hazardous business. The particular danger apparent to every one was the Lability to come in contact with undischarged dynamite. This danger was unavoidable, and he and the foreman were alike ignorant of where these cartridges were lying. This risk was an incident to the business, assumed by him. (Crown v. Orr, 140 N. Y. 450; Mancuso v. Cataract Construction Co., 87 Hun, 519; Huda v. American Glucose Co., 154 N. Y. 474, 481.)
      The master fulfilled his duty to his workmen when he furnished adequate appliances, competent foremen and a place in its natural state safe for the men. After that the details of the enterprise must of necessity be developed by the men themselves, and if there was any negligence it was that of a co-servant and not chargeable to the master.
      The position taken by the trial court, that it was for the jury to trass upon the sufficiency of the inspection made by Leonard, is untenable:
      
        Mrst. If such inspection was carelessly made, that carelessness cannot be imputed to the defendant.
      
        Second. The evidence does not show that the most circumspect examination would have revealed these undischarged cartridges, covered up as they were.
      A new trial is ordered, with costs to abide the event.
     