APPEAL by the defendant, The Mathews Slate Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 5th day of October, 1910, upon the verdict of a jury for $6,000, and also from an order entered in said clerk's office on
the 4th day of October, 1910, denying the defendant's motion for a new trial made upon the minutes.
Edward W. Douglas, for the appellant.
A. Page Smith, for the respondent.
The plaintiff was injured while blasting in defendant's quarry. He was directed to make what is termed an air shot, which is made by leaving an air chamber between the powder and the wadding.
The negligence upon which the plaintiff's recovery is predicated is lack of instruction to the plaintiff as to the manner of making such shot.
The recovery cannot be sustained on such ground. The plaintiff himself testified that he knew how an air shot was made and that he was not making such a shot when he was injured, but was attempting, without being instructed so to do, to make a blast of an entirely different kind. He prepared and fired one air shot which failed to break the rock, and then prepared another which also failed. Thereupon, on his own responsibility, he obtained a stick of dynamite and attempted to insert it in the bore. It stuck in the boring, and finding he could not push it with a wooden stick, he took an iron bar and jammed the dynamite so hard that it exploded and inflicted the injuries for which he has recovered.
The plaintiff had been about the quarry long enough presumably to know that hitting dynamite confined in a boring with an iron bar was likely to explode it. Even if he did not know this fact, the defendant is not responsible for failing to instruct him, because the plaintiff was doing something on his own responsibility and contrary to the instructions of the defendant's superintendent, which were that he make an air shot which was wholly made with powder and not with dynamite.
The defendant, therefore, was not responsible for failing to instruct the plaintiff as to the manner of making an air shot because the plaintiff knew how to make it. It was not responsible for failing to instruct the plaintiff with respect to
the use of dynamite because it gave him no directions to use dynamite in making the blast.
It follows that the order and judgment must be reversed and a new trial granted, with costs to the ...