APPEAL by the defendant, The Delaware, Lackawanna and Western Railroad 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 17th day of April, 1911, upon the verdict of a jury for $1,250, and also from an order entered in said clerk's office on the same day denying the defendant's motion for a new trial made upon the minutes.
F. W. Thomson, for the appellant.
Sydney A. Syme, for the respondent.
The evidence in the present instance is not materially different from that presented by the record in a former appeal (Scott v. D., L. & W. R. R. Co., 136 A.D. 347), though there is an evident effort to meet some of the points suggested in the opinion of this court in reversing the judgment, and it is not seriously questioned, as we understand it, that the same result should follow in this case, except that it is urged that the Court of Appeals has held a different doctrine in the case of Henry v. Hudson & Manhattan R. R. Co. (201 N.Y. 140), which would of course be controlling here. In the Henry Case (supra) it was conceded that the judgment of nonsuit would have been proper in so far as the evidence merely disclosed that the work under way had produced the place in which the work was being performed, and that the blasters, who were fellow-servants, had failed to clear up the dangerous loose stones, but it was held that, because the evidence disclosed that on the day previous to the accident the defendant's general superintendent had been told by a workman that the rocks at the head of the tunnel were dangerous and likely to fall, and that this general superintendent had admitted that they did look pretty dangerous and that he would have them removed by nightfall, a different question was presented and one which it was the duty of the court to submit to the jury. In that case the loose stones were not removed, and there was no evidence that the defendant's general superintendent had taken any precautions to prevent the danger which he had conceded to have been apparent, and the court very properly held
that when the defendant, by its general superintendent, knew that one set of servants had so negligently done their work as to occasion danger to a fellow-servant, it is his duty to interpose and take reasonable measures to see that the rules are complied with, the work properly done and the danger removed, citing O'Brien v. Buffalo Furnace Co. (183 N.Y. 317), a case where the defendant's general manager, admitting that he knew the danger of tamping dynamite with a steel rod, permitted a foreman to use such a rod in tamping dynamite in a pipe, the resulting explosion killing plaintiff's intestate, who was working with the foreman. There can be no question of the propriety of the rule stated in the cases cited, but no such state of facts exists in the case now before us. It is true that there is some testimony to the effect that one of the workmen engaged in the construction of the tunnel through Bergen Hill, where the plaintiff was injured, called the attention of the defendant's foreman to the fact that there was apparently a dangerous rock left after the blast of the previous day just before midnight; that the plaintiff had some conversation with this same foreman about a crack in the rock just before the accident happened, and that the foreman told him that it was all right and to go ahead, but it is very apparent from the testimony that the foreman did not admit that the situation was dangerous, and that he did not give any assurances to the plaintiff that the condition, which was known to him, would be changed. The plaintiff had had twenty-four years of experience as a driller in tunnel work. The work was being carried on in solid rock, and all of the conditions were as well known to the plaintiff as to the defendant's foreman, and there is nothing in the evidence from which the fair inference may be drawn that the plaintiff was acting under any coercive orders of the defendant. As was said in the case of O'Brien v. Buffalo Furnace Co. (supra), the 'statements of the foreman and the superintendent that there was no danger seem no more than declarations of opinion on their part which the deceased might accept or reject as he deemed wise,' and that is certainly as far as the testimony in this case goes. The plaintiff suggested that there was danger of the rock falling; he had as good an opportunity to know and judge of this danger as the
foreman, and after a conversation with the latter, in which the latter merely expressed the opinion that the rock would not fall, the plaintiff went on with his work as directed. There is not a particle of evidence from which the inference could be properly drawn that the plaintiff was forbidden to make any further investigations, or that he was deprived of any means to ascertain the extent of the danger to which he was exposed. Counsel attempts to carry the impression that the plaintiff was urged to hurry up the work, but a reading of the testimony to which reference is made only goes to show that the foreman suggested that he wanted to get the work progressed so that it would be ready for those who were to come along on the following day, and there is nothing to show that the plaintiff was in any manner hindered from taking any and every precaution which the situation should have suggested to a man of his long experience in the same line of work. There is some testimony, to be sure, to the effect that the steam shovel was used to dig out projecting rocks of large size, and that the foreman alone had authority to direct the action of this steam shovel, but there is absolutely no evidence that the steam shovel had not been employed in fitting the place after the blast, or that all proper effort had not been made to clean up the shattered rock. The most that can be said from the evidence is that there was a crack in the rock; that it was not wholly severed from its connection with the solid rock in which the work was being carried forward and that the defendant's foreman, whose general competency is not questioned, expressed the opinion that the rock would not fall. There is no evidence that the foreman was better qualified to judge of the situation than the plaintiff, no evidence that the plaintiff was under any compulsion to go to work or that he had any assurance on the part of the defendant's foreman that the situation would be changed. There was no failure of inspection if it be conceded that inspection was one of the duties which the defendant owed. There was an inspection by the foreman, whose competency is not in issue, and the foreman reached the conclusion that the rock would not fall, and the plaintiff, with an equal right to determine this question, seems to have agreed with him. Inspection does not amount to a guarantee of the judgment of the
inspector; the master does not absolutely insure against errors in judgment of competent employees, and unless such a rule is to be adopted, the plaintiff has failed to make out a case. Under the evidence in this case it was the duty of the day gang to drag down loose rocks and to clear up the debris, and any negligence in the performance of this part of the work was clearly that of fellow-servants. ( Henry v. Hudson & Manhattan R. R. Co., 201 N.Y. 140, 142.) Work had progressed for at least five or six hours after the day gang had departed; the plaintiff and others had been using steam drills on the ledge from which this rock fell, and the place afforded the plaintiff to perform his work was constantly undergoing changes in the progress of the undertaking, so that the question of a safe place in which to work is not involved in this case. (Henry v. Hudson & Manhattan R. R. Co., supra.) The master clearly had a right to intrust a competent foreman with the details of this work, and the fact that this foreman may have erred in judgment in respect to the danger to be apprehended from a condition known equally to the plaintiff is not evidence of negligence on the part of the defendant, and the case of Henry v. Hudson & Manhattan R. R. Co. (supra) is not an authority for the submission of this case to the jury.
The rule of law applying to this case is to be found in King v. Ford (121 A.D. 404) and in the opinion of this court on the former appeal and is clearly to be distinguished from the case relied upon by the respondent in that in the Henry Case (supra) the general superintendent of the defendant had his attention called to the situation and admitted that it looked dangerous and promised to have the same remedied before nightfall. The plaintiff in that case went to work on the following day without notice of the dangerous condition which had been produced by another class of servants and which danger was known to the defendant's general superintendent, who had promised to remedy the defect. The negligence in that case consisted of the failure on the part of the defendant to compel one class of servants to ...