
    Luciano Caciatore, Respondent, v. Transit Construction Company, Appellant, Impleaded with Edward F. Lathrop and John J. Shea, Copartners, Doing Business under the Firm Name and Style of Lathrop & Shea, Defendants.
    Second Department,
    December 21, 1911.
    Appeal — failure to except — master and servant — negligence — injury by falling rock — safe place to work -r- knowledge of danger — erroneous charge.
    The Appellate Division may, notwithstanding the absence of an exception, review, on an appeal from a judgment entered on a verdict, and from-an order denying a new trial on the minutes, a ruling of the trial judge submitting a particular question to the jury. . .
    When excavating a railroad cut involves, the blasting of rock and removal of the debris by a steam shovel moved forward on tracks during the progress of the work, and a laborer employed in the cut to clean the drill holes and to'clean and relay the tracks is injured while taking out a drill from a piece of rock then in the bucket of the steam shovel, in consequence of being struck by a piece of rock which had partly wedged in the side of the cut and which fell down upon him, the question as to whether his master fmnisked a safe place in which to work is not involved as it was the doing of the work which made the place dangerous.
    
      It seems, that where in an action to recover for injuries so caused the plaintiff testifies that he knew he was going to a dangerous place when he went to remove the drill, it is error to charge that “ In determining the question of plaintiff’s contributory negligence and also the question of plaintiff’s assumption of the risks that the plaintiff was entitled to rely upon the assurance of safety given by defendant, * * * and * * * upon the superior knowledge and experience of the defendant in such work.”
    Woodward, J., dissented.
    Appeal by the defendant, the Transit Construction 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 28th day of November, 1910, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 3d day of January, 1911, denying the said defendant’s motion for a new trial made upon the minutes.
    
      
      Thomas F. Curran [James B. Henney with him on the brief], for the appellant.
    
      L. F. Fish [Sydney A. Syme with him on the brief], for the respondent.
   Jenks, P. J.:

The action is brought under the Employers’ Liability Act (Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14) by servant against master. A question submitted to the jury, upon which much stress was laid by the learned court, was the liability of the defendant for failure to furnish the plaintiff, its servant, with a safe place for work. The learned counsel for the respondent insists that, inasmuch as this submission was not excepted to, the theory of trial must control.

But that rule does not apply in this court, for we may review the question in the absence of any exception. (Leach v. Williams, 12 App. Div. 173; Vorce v. Oppenheim, 37 id. 69; Roberts v. Tobias, 120 N. Y. 1.) I think that the case did not present the feature of a safe place to work. The defendant was building a railroad in a cut twenty-five feet deep. The work required the blasting out of rock which was taken away by a steam shovel pushed forward on tracks as the work went on. The plaintiff labored in the cut at cleaning up, clearing the tracks and the drill holes and in relaying the tracks. About one hour before the accident blasts had been fired and the steam shovel had lowered part of the dislodged rocks. The plaintiff was ordered by the defendant’s servant Tucci, described as “the boss,” to take out a drill from a piece of rock then in the bucket of the shovel. As he went about his task a piece of rock partly lodged in the side of the cut fell out and down and struck the plaintiff. The case did not present the feature of safe place, inasmuch as the doing of the work made the place for the work. (Di Vito v. Crage, 165 N. Y. 378; Citrone v. O’Rourke Engineering Const. Co., 188 id. 339; Henry v. Hudson & Manhattan R. R. Co., 201 id. 140, 142.)

In view of the new trial it is proper to notice an exception to an instruction.- The learned court charged this request: “In determining the question of plaintiff’s contributory negligence and also the question of plaintiff’s assumption .of the risks that the plaintiff was entitled to rely upon the assurance of safety given by defendant, if one was given, and .was also entitled to rely upon the superior knowledge and experience of the defendant in such work.” “Rely ” means to trust or to depend upon (Cent. Dict.), so that this instruction was tantamount to saying that the plaintiff might trust or depend upon such assurance and such superior knowledge. While recognizing the principle announced in such cases as Kain v. Smith (89 N. Y. 375); McGovern v. C. V. R. R. Co. (123 id. 280); Chadwick v. Brewsher (39 N. Y. St. Repr. 718), and Hennessy v. Boston (161 Mass. 502), which was doubtless in the mind of the court, I think that the instruction was. erroneous in the case at bar, in that it went too far. The plaintiff testifies: “ I knew then that I was going to a dangerous place to get that drill out of the rock. * * * Q. Well,.[you knew] that there was a danger there ? A. That there was a danger there.” If the jury found that the plaintiff knew that the place was dangerous, they were not required as a matter of law to acquit him. of contributory negligence, if they believed that the master had assured him that the place was safe, or that the plaintiff relied upon the knowledge and experience of the master. (Thomas Neg. [2d ed.] 157, and authorities cited.) In McKee v. Tourtellotte (167 Mass. 70) Holmes, J., says for the court: “ When we say that a man appreciates a danger, we mean that he forms a judgment as to the future, and that his judgment is right. But if, against this judgment, is set the judgment of a superior, one, toó, who from the nature of the callings of the two men, and of. the superior’s duty, seems likely to make the.more, accurate forecast, and if to this is added a command to gó on with his work and to run the risk, it becomes a complex question of the particular circumstances whether the inferior is not justified as a prudent man in surrendering his own opinion and obeying the command. The nature and the degree of the dangqr, the extent of the plaintiff’s appreciation of it, and the exigency of the work, all enter into consideration, and r_o universal rule can be laid down. (See Hennessy v. Boston, 161 Mass. 502; Coan v. Marlborough, 164 Mass. 206; Burgess v. Davis Sulphur Ore Co., 165 Mass. 71.) ” .

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

’ Thomas, Carr and Rich, JJ., concurred; Woodward, J., dissented.

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