
    Peter Arras, Appellant, v. The Standard Plaster Company, Respondent.
    Fourth Department,
    July 9, 1907.
    Master and servant — injury in mine — failure to timber roof — assumption of risk —evidence of dangerous condition.
    A master is not absolved .from liability in failing to properly support the roof of a mine which fell and injured his employee, if such support would have prevented the accident, although blasting and digging by the plaintiff and his fellow-servants may have contributed to the fall.
    An employee who remains at work in a mine does not as a matter of law assume the risk arising' from the insecurity of the roof when the master has failed to properly timber the same as required by statute, He is presumed to assume only the risks inherent to the employment after the master has exercised due care in preparing a safe place-to work, and has.complied with the laws regulating the same.
    In such action it is error to exclude evidence tending to show that several . months after the accident the roof of the mine was inherently dangerous by ■ reason of its formation if the same condition existed at the time of the accident.
    McLennan, P. J., and Williams, J., dissented.
    Appeal by the plaintiff, Peter Arras, from a judgment of the Supreme Court in favor of the defendant, entered in the office óf the clerk of. the county of Genesee on the 5th day of September, 1905, upon the dismissal of the complaint, by direction of the court at the close of the -plaintiff’s case at the Genesee Trial Term, and also from an order entered in said clerk’s office on the 5tli day of September, 1905, denying the plaintiff’s motion fora new trial made Upon the minutes.
    
      George W. Watson, for the appellant.
    
      George P. Keating, for the respondent.
   Kruse, J.:

The plaintiff, a workman' in the defendant’s plaster mine, was hurt while so employed, a mass of rock and other material falling upon him from the roof of the mine. .

He contends that the defendant failed in its duty to secure the roof and prevent its falling and make his working place reasonably safej that the defendant by reasonable inspection could have ascertained before the mass of rock fell that it was. insecure and liable' ■to fall; that it negligently failed to discover the insecurity, or if known to it, failed to secure the material which fell; that the plaintiff was assured by the defendant’s superintendent of its safety and relied thereon ; that he himself was reasonably careful for his own safety and the risk was not one assumed by him, but that the' accident was due entirely to the carelessness of the defendant. '

At the close of the plaintiff’s case the defendant’s motion for a nonsuit was granted, the trial court holding that the falling of the material was caused by the blasting done by the plaintiff and his fellow-workman in working the mine. ' The plaintiff excepted, and this exception and the exclusion of certain testimony offered 'by the plaintiff, which will be referred to later, present’ the only questions which need be discussed upon this appeal.

The mine is situate in Genesee. county. It is dug horizontally into the side of the bank of Tonawanda •'creek; the main tunnel extends into the hill eight or ten rods, then turns to the right a distance of five or six rods to the chamber where the accident occurred. The chamber is about five or six feet deep, three or four, feet wide, and about six feet high.

The plaintiff, a laborer, commenced work in the defendant’s mine in June,-1902, and. the accident occurred on Monday, Hovember third, of the samé year. The chamber had been blasted on the Friday preceding the accident by the plaintiff and his fellow-workman, both of whom were directed in their work by the- defendant’s superintendent, who had full charge of the work. He gave them the directions in the placing of posts to keep the material from falling, and the manner of prosecuting the work, directing the plaintiff and his fellow-workman where to. work and how to do it. ■■ Two posts were placed at the entrance to the chamber,.but none inside where thé matérial fell. ■

The plaintiff testified that he was not a miner; that he had never done anything exce])t common labor in a mine; that the superintendent told him where to work, and showed him the particular place to dig in the chamber; that the superintendent examined the place and said it was all right, that the arch had been left all right; that the rock overhead in the chamber was roof rock and perfectly safe; that the superintendent held up his lamp and looked at it and took the bar and felt of it, and thereupon said that it was roof rock, all safe and no danger; that plaintiff believed the statement and thought that the place was safe. The plaintiff testified further that he was directed to bore a hole in the side wall, load with, a cartridge, and explode it, which was done by means of a current of electricity communicated through a wire with which the cartridge was connected; that the blast was exploded by the plaintiff, and thereafter the plaintiff and a fellow-workman re-entered the chamber and were engaged in prying off with a bar the plaster which had been loos.ened by the blast on the side wall of the mine; that while so engaged a mass of rock weighing about 600 pounds and covering about two-thirds of the ceiling fell upon the plaintiff:

The precise time which had elapsed after the explosion of the blast and before the falling of the rock is not stated; the plaintiff gave it as a short time. It further appeared that there was no rule in the mine by which an inspection was made after the blast and before the workmen returned. While the plaintiff admitted that he also thought the ceiling of the chamber was solid,, and exercised to some extent his independent judgment, yet he relied upon what he was told by the superintendent — that this rock which fell was safe and would not come down. Had the rock which fell been solid roof rock extending beyond the sides of the chamber, it is entirely probable that it would have been safe as the superintendent claimed it was, and it is equally probable that if the chamber had been timbered by placing proper supports underneath the roof, where this rock was located, it would not have fallen.

It is possible that the firing of the blast may have been a contributing cause of the rock falling, although it is by no means certain, since the rock that fell did not extend to the side of the wall where the blasting was being done; nor is it certain that the use of the crowbar in removing the broken plaster from the side wall was a contributing ■ cause of- the accident, as that work was being done-on the side about midway between the roof and floor of the mine chamber.' But even if either or both contributed to the accident, it does not follow that the defendant is absolved from liability. If it failed in its duty to the plaintiff in properly supporting the roof of the mine, or otherwise failed to take reasonable precautions for the safety of its workman, the plaintiff, and such neglect upon its part contributed also to the accident, and without which the accident would not have happened, it might still be liable to the plaintiff for the injuries.which he received resulting from the. accident. (Tetherton v. United States Talc Co., 41 App. Div. 613, 614; affd., 165 N. Y. 665.)

While the evidence is not very satisfactory as, to whether reasonable inspection would have revealed the insecurity of the overhead mass of material,, yet the evidence which the plaintiff offered showing the formation and character of the rock, and the general condition of this mine which, was excluded, against the plaintiff’s exceptions, might have made that fact appear clearer. It is true that the evidence related to the condition of the mine as it was several months after the accident,. but it appeared that the mine was" in substantially the same condition as it was at the time of the accident ; that the rock which fell was still there, and that the general formation and character of the rock and other material, through and in which the mine was-excavated, had not changed.

The plaintiff contends that if he had been permitted, he would have shown that the mine was inherently dangerous, that numerous so-called chimneys of earth extended from, the surface of the ground to the interior of the mine, through which moisture, was carried, thereby disintegrating and loosening the earth and rock so that it" would fall in the mine; that even with the best of timbering it would be dangerous to carry on mining operations in this miné ; and that this condition would have been shown to be so apparent to a person familiar with such conditions, that the defendant knew, or ought to have known, it in the exercise of reasonable- care for. the safety of its workmen, although the danger was not apparent to an ordinary workman, and it -is urged that the defendant should at. least have warmed the plaintiff of the danger, instead of assuring him that the ceiling of this chamber was roof rock and safe.

The general rule that an employer is required to 'provide his workmen with a reasonably safe place in which to work has been supplemented from time to timé by statutory enactments imposing upon employer’s specific duties for the safety of workmen engaged in particular kinds of work. The Legislature, evidently having in mind the dangers to workmen in mines, has provided' as follows: “•Each owner, agent, mazzager or lessee of a znine shall cause it to be properly timbered, and the roof and sides of each woi’king place therein properly secured. Ho person shall be required or permitted to work in an unsafe place or under dangez’ous znaterial, except to znake it secure.” This provision' was substantially contained in sections 9 and 10 of chapter 394 of the Laws of 1890, and was subsequently embodied in the Labor Law (Laws of 1897, chap. 415) and znade a part of section 122 of that act.

It cannot.be said, as a matter of law, that the plaintiff assumed the risk of the insecurity of the znaterial which fell frozn the top of the chamber, if the plaintiff was negligent in its duty in failing to propeziy seczzre the saíne, and permitted the place where the plaintiff was required to- woi’k to become unsafe, since thei’e is no presumption that the plaintiff assented to any but the necessai’y risks of lzis occupation or eznployment, and which were inherent in the nature of the business in which he was engaged, after the defendant had exercised due care in providing for his safety, and had complied with the laws affecting or regulating the occupation for the greater safety of the eznployées engaged therein. (Laws of 1902, chap. 600, § 3.) . '

The duty, of making the plaintiff’s wozddng place reasonably safe devolved upon the defendant. It was not a mere detail of the woz-k, if the plaintiff is light .in his claim as to the effect to be given to the evidence and the inferences to be drawn therefrom. Had the material fallen upon the plaintiff while he was engaged in placing the pillars,-or otherwise, making the mine more secure, a different' question uiight be. presented, but this particular part of the mine where the material fell was held out to the plaintiff as being safe and requiring no further security or ‘ méans of safety. In fact, he was assured by the superintendent that it was safe and that the material would not fall.

'Whether he was justified in"relying upon the presumably superior knowledge of the superintendent, and whether the superintendent was negligent in not discovering the true condition, necessarily depended, to some- extent at least, upon the formation and. other conditions of the material in which the miné was being'worked.

It is contended on behalf of the plaintiff that the testimony which was offered by him- and excluded would have shown a condition inherently dangerous, and that while ordinary workmen might- discover its true condition, a person familiar with the operations of mining and skilled in that kind of work ought to have appreciated the danger. . ■

We are clearly of the .opinion that the .evidence offered was competent and material, and that it was improperly .excluded.

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

All concurred, except McLennan,-P. J., and Williams, J., who dissented.

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