
    John Mahoney, Respondent, v. Cayuga Lake Cement Company, Appellant.
    Fourth Department,
    May 6, 1908.
    Master and servant—negligence — injury by blast — fellow-servant — detail of work.
    In a common-law action by a servant who was injured by the explosion of a dynamite cartridge which he was directed to use by his master’s foreman, the master must be deemed to have performed his duty by furnishing a competent foreman and adequate cartridges and fuses for use in blasting.
    As under the common law the foreman and the plaintiff are fellow-servants, the negligence of the former in directing the plaintiff to use a cartridge to which he had attached a fuse of inadequate length was a mere detail of the work, and there can be no recovery.
    Appeal by the defendant, the Cayuga Lake Cement Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the «county of Tompkins on the 8th day of January, 1907, upon the verdict of a jury and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.
    The appeal in this case was taken to the Appellate Division, third department, and the four justices qualified to hear the appeal were equally divided, and thereupon that court directed the appeal to be sent to this department for hearing and determination pursuant to section 231 of the Code of Civil Procedure.
    
      Halsey Sayles, for the appellant.
    
      James O. Sebring and Seaman F. Northrup, for the respondent.
   Spring, J.:

The action is in negligence by a servant against his employer, and is not brought in pursuance of the Employers’ Liability Act (Laws of 1902, chap. 600), so that the rights of the parties are to be measured by the rules of the common law. (Curran v. Manhattan R. Co., 118 App. Div. 347.)

In September, 1901, the defendant, a domestic corporation, was engaged in blasting or excavating in a quarry in the town of Lansing, in the county of Tompkins. The plaintiff was in its employ as a common laborer. Holes were drilled in the rock about ten feet in depth and an inch and a half in diameter. After they were cleaned out a dynamite cartridge, to which was attached a fuse, was placed in each hole. The fuse, which for safety should be from eighteen to twenty-one inches in length, was lighted as the cartridge was dropped in the hole and the appliance was pushed down with a tamping stick. As it reached the bottom the cartridge exploded, enlarging the hole, and thus a larger charge of dynamite could be used to tear up the rock.

A man named Maloney was in charge for the defendant. He was a competent man of many years experience in this kind of blasting. He was furnished with suitable dynamite cartridges. The fuses he received in coils of fifty feet each, and personally cut them into squibs adaptable for the explosives used, to which he attached them.

On the day of the accident the plaintiff had drilled and cleaned out a hole and; was directed by Maloney to get a cartridge and fuse from the tool shop, near at hand, where they were stored, which he did. The fuse, according to the evidence of the plaintiff, and which' has been credited by the jury, was only six or seven inches in length. When the plaintiff brought the cartridge with the fuse attached Maloney told him to light the fuse and put it down in the hole. The plaintiff knew the danger of handling dynamite and had engaged in surface quarry blasting,- but was not accustomed to the use of dynamite in the manner adopted by the defendant, and objected to performing the orders of the foreman. Maloney showed him how to light the fuse, which the plaintiff did, put it down in the hole and attempted to tamp it down when the cartridge prematurely exploded, lacerating his hand so that it was afterwards amputated. The cause of the disaster was the short fuse. The quality of the dynamite and fuse furnished is not questioned, and the competency of Maloney, the foreman, is not challenged.

The court charged the jury that the defendant was bound to furnish suitable tools and appliances for the plaintiff to carry on the work he was performing; that the cartridge used was a tool or appliance, and permitted the jury to determine whether it was of sufficient length for the purpose intended. Also, as matter of law, that Maloney was the alter ego of the company, and was not a fellow-servant of the plaintiff.

The defendant performed its duty to the plaintiff and its colaborers when it provided this foreman, doubtless better qualified than any officer of the defendant, with adequate cartridges and fuses for him to use in dynamiting. The cutting of the fuses and affixing them to the cartridges was a mere detail of the work. (Vogel v. American Bridge Co., 180 N. Y. 373; Russell v. Lehigh Valley R. R. Co., 188 id. 344; Fallon v. Mertz, 110 App. Div. 755.)

The plaintiff relies upon O'Brien v. Buffalo Furnace Co. (183 N. Y. 317). In that case the plaintiff’s intestate was engaged in dynamiting slag which had collected at the bottom of a blasting furnace. The premature explosion of the dynamite, which killed the plaintiff’s intestate, was caused by tamping with a steel instead of a wooden rod. The foreman in charge was competent, but was negligent in permitting the steel rod to be used. ■ It is obvious from statements contained in the opinion that upon the facts recited the defendant would have been acquitted of liability. 1 The court distinctly say that the negligence of Minor, the foreman, was that of a fellow-servant in the performance of a detail of the work.” It appeared, however, that the general manager of the defendant, who was its'alter ego, was present^just before the explosion occurred, and observed the foreman using the steel rod to tamp down the dynamite. He knew that the use of this rod was improper, but did not interfere. The defendant, therefore, consented to the use of an improper ajDplianee, and the question of a competent foreman, to whom had been intrusted the details of the work, was eliminated from the case.

In the Vogel Case (supra) the defendant, engaged in erecting a steel frame for a roof, furnished an abundance of suitable ropes for the work. The foreman selected a defective one, which broke, and the plaintiff was injured. The court, in holding that the defendant was not liable, thus succinctly restated the familiar rule (at p. 380): “ If the master does, or must, employ some one to represent him in managing the performance of the work, and. he neglects no precaution in the selection of a competent foreman, and in making all reasonable provision for a safe and proper execution of the work, he has discharged his duty. As to the details, in the execution of the work, the foreman and workmen are fellow-servants. This is a logical application of the rule of law and it is a just one.”

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

• All concurred, except McLennan, P. J., not sitting.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  