Capasso v. . Woolfolk

Gray, J. I am unable to distinguish this case from that of Perry v. Rogers / decided by us since the decision of the Appellate Division in this case. (157 N. Y. 251.) In that case, the plaintiff was directed by the foreman in charge of the men to go up “ on the bench,” .which had been created in the side of a ledge of rock by blasting, for the purpose of cleaning it off. While so engaged, a large stone fell out of the wall, some six or seven feet above the bench, and inflicted upon him the personal injury for which he recovered a judgment. The judgment was reversed in this court, upon the ground that the master had furnished everything that he was *476 obliged to, including competent employés and a skilled foreman ; that any' omission on the part of the foreman to notify the plaintiff to pry off the piece of rock that fell upon hitn was not attributable to the master; as it related to an ordinary detail of the work in which the foreman and the others were engaged and that the negligence of the foreman in that respect was the negligence of a fellow-servant. The theory of the court below, in that case, that the duty of the defendant to provide a reasonably safe place for his workmen was continuous, so that in every change in the situation, occasioned by the blasting, the master’s duty of providing a reasonably safe place for his workmen attached, was negatived in the opinion of this court. It was observed, with respect to the master’s duty towards the plaintiff to remove threatening fragments of stone, that “ it formed one of the many details of the work incident to the removal of this rocky cliff, which the defendant had a right to intrust to a skillful foreman and competent workmen, after providing them with the necessary and proper machinery, appliances and tools.” The conclusion reached by us in that case was predicated upon the prior decisions of Loughlin v. State of New York, (105 N. Y. 159), and Cullen v. Norton, (126 N. Y. 1). The principle of that decision is applicable to the present case and, in my opinion, calls for a reversal at our hands. ' It is true that the plaintiff testified that one of the defendants directed him to go to work and in the opinion of the Appellate Bivision stress is laid upon that feature. But I am quite unable to perceive how it in anywise affects the case. Assuming, as we must, the truth of the fact so- testified to, it was no more than what would be always implied in a direction given to an employe to perform his work in a designated place. Whether the direction is given by the master in person, or by some superintending agent, is unimportant; for, in either. case, the duty of the master towards his employé is the same. If the master gave the plaintiff the order to enter upon the work that evening, the former had the right to intrust its details to the foreman, whose competency is not questioned, and to the night gang, *477 whose members, in the absence of evidence to the contrary, were, presumably, competent workmen. The master, in such a case, is not supposed to watch for supervening conditions, in the progress of the work on which his workmen are engaged. If his measure of duty had been performed by sending them off to the work under right conditions, with an experienced foreman and competent workmen, nothing further was incumbent upon him. If the accident happened during the performance of their work, due to some negligent act of commission or of omission in their midst, then the nes:ligence was that of a fellow-servant and that was a risk which the plaintiff assumed in entering upon the employment. Hor can it be said of this case, as it was considered at the Appellate Division, that there was any evidence for the consideration of the jury that there had been an omission in the duty of inspection. The only evidence on the part of the plaintiff bearing upon inspection was general in its nature and with no especial reference to the situation upon the night in question. It was to the effect that after the blastings occurred, which had been previously described by the witness, “ the contractors never did anything; that they never sent anybody around.” On behalf of the defendants, it was testified by the day foreman that, after the blasts of the day preceding the night in question, he and his men had gone, over the loose stone and had barred down all that seemed dangerous. ■ The foreman of the night gang, particularly, testified that he had noticed this particular stone, or rock, which fell upon the plaintiff, and that he had tried to move it by use of the derrick, as well as by bars, without success. After the evidence was closed, the plaintiff was recalled, as was his principal witness who had given the evidence concerning the blastings and the custom of the contractors; but neither of them contradicted in any way the testimony of the foreman of the night gang. The effect of this direct and precise evidence given by the foreman of the plaintiff’s gang and the failure to contradict it by the plaintiff and his witnesses, when recalled in rebuttal, did not seem to have been appreciated in *478 the court below. I regard them as determining features of the case. As the case was left upon all the testimony, there was no question to be submitted to the jury; for the evidence that there had been an inspection of the work and that care had been exercised to remove the threatening danger was undisputed. If, therefore, it could be said that the master, in personally directing the plaintiff to perform his work at the place in question, had assumed some extraordinary duty of care, which I do not admit, it was not shown that he failed in its requirements. The order of the Appellate Division should be reversed and judgment should be entered dismissing the complaint, with costs to these appellants in all the courts. Parker, Ch. J., O’Brien, Haight, Martin, Landon and Werner, JJ., concur. Order reversed, etc.