Riggs v. New York Tunnel Co.

Woodward, J.: The plaintiff has entered a judgment in an action for negligence on the verdict of a jury, and the defendant appeals from such judgment' and from an order denying defendant’s motion for a new trial. [673] The defendant was a sub-contractor for the construction of the subways under the East river, and at the time of the accident resulting in the death of plaintiffs intestate, was engaged in excavating the tunnel through the rock bed of the river. The work was being done by “ shifts ” of workmen operating night and day, and the ■ plaintiffs intestate was an inspector appointed by the board of rapid transit commissioners to ascertain and report to his superiors at the end of each shift the progress of the work and to measure the amount of tlie excavation. The excavating was done by drilling holes in tlie rock and blasting out the same, one-half of the heading at a time, above and below alternately. On the after noon of the 30th of September, 1906, certain holes had been drilled in the heading. These holes were about ten feet deep, in the lower half of the face, in two rows six feet apart, five holes in a row, converging until they almost met at their ends. These were termed “ cut holes.” On either side of these two rows was a row of holes known as “ rib holes ” or helpers, parallel to the axis of the tunnel. Outside of these “rib holes” were two rows of five holes each, known as “ side rounds,” the holes being about two and one-half or three inches in diameter. In these holes dynamite cartridges were placed, and imbedded in the dynamite were exploders to which were attached wires connected together in chain, connected with a firing wire attached to an electric dynamo by means of a switch. It was not the custom or intention to explode all of the dynamite at once, and no connection for explosive purposes had been made with the “rib holes” or the “side rounds.” The cartridges in the “ cut holes ” were discharged before the workmen went to supper, and when they returned at about eight o’clock in the evening an examination showed that some of the “ cut holes ” had not been blown out entirely, but that the “butts” of the “cut holes” remained. These places were reloaded and the charges were again fired, the wires connecting with the cartridges in the “ side rounds ” and the “ rib holes ” remaining detached from the exploding mechanism. At the time of the second discharge the plaintiff’s intestate was in the tunnel waiting to make his inspection, it being near the time for the change of “ shifts.” After the “ butts ” had been thus exploded, the foreman in charge of the “shift” of workmen waited for a period variously estimated from half a minute to five or six minutes [674] and then called out, “ It is all over, hays, go in and blow out the smoke.” The defendant’s employees started to obey this order or direction of their foreman, and the plaintiff’s intestate, who was there in behalf of the city, started to go with them. He had moved forward about thirty-five feet when a second explosion occurred and he was fatally injured by the flying rock, and the question presented by this appeal is whether the verdict, resting upon the defendant’s negligence, can stand. The plaintiff’s intestate clearly had a right to be in the tunnel at all times when his duties as an inspector required his presencethe contract under which the work was being performed expressly provided for this, and the discharge of his duties of inspection, and of measuring up the amount of excavation accomplished, required that he should be, at some time, at the immediate point where the explosion occurred. At the time that the “ butts ” explosion was set off, the plaintiff’s intestate, with the employees of the defendant, was at a safe point; neither he nor the other persons present moved from this position until the foreman announced, “ It is all over, boys, go in and blow out the smoke.” If it was proper for the defendant’s employees to be ordered forward into the tunnel where the explosion had just taken place, a question was fairly presented to the jury to determine whether the plaintiff’s intestate was in the exercise of reasonable care in going with them to the point where his duties called him, even though the place was filled with smoke, rendering it dark and unwholesome, and the only question remaining is whether the defendant was guilty of negligence in exposing the plaintiff’s intestate to the danger which he encountered by reason of the second explosion in the “ butts,” for it seems to be conceded that none of the disconnected cartridges in the “ rib holes ” and “side rounds” were exploded. It is probably true, as held by the learned court at the trial, that this was not a case for the application of the doctrine of res ipso loquitur; it was not a case where the mere happening of the accident imposed upon the defendant the duty of explaining it and showing freedom from negligence, but it was a case where, all the known facts being placed before the jury, inferences were to be drawn, and one of the inferences which a jury might properly have drawn was that there was negligence in the adjustment of the fir [675] ing apparatus which prevented the explosion at the time it was intended to be exploded, and deferred it until after a period of several minutes. The evidence shows that, generally speaking, these cartridges all exploded; they were expected to explode when properly fitted up and connected with the electric current, and the fact that one or more of these cartridges did not explode at the' time the current was applied, and that one or more of them did explode some minutes after the others, indicates some defect in the cartridges or in the electrical connection, and, as the facts were peculiarly within the knowledge of the defendant, unexplained they would justify the jury in finding that the defendant, in handling a high, explosive, had been guilty of neglect constituting the proximate cause of the accident. If this was a matter of common occurrence; if, in fact, it was something to be expected, after the exercise of due care in preparing for the blast, then the jury would have the right to draw the inference of negligence from the fact that the foreman announced, “ It is all over,” and directed the employees to go in and blow out the smoke, before a proper inspection or the lapse of sufficient time. It is true, of course, that the plaintiffs intestate was not an employee of the defendant, and he was not subject to the orders of the defendant’s foreman, but he was lawfully there, and his duties required him to be present for the purpose of measuring up the work accomplished, and the defendant owed him the duty of not misleading him through the assurances of its foreman, who tells us in his testimony that he was an experienced blaster, and held a certificate of competency for such work from the New York fire department. This is not the case of one who is lawfully upon the premises of one in the employment of another, who leaves the place where he is expected to perform his services and goes to some other part of the premises for his own purposes, as in the case of Flanagan v. Atlantic Asphalt Co. (37 App. Div. 476), and analogous cases, but is the case of one who is on the premises for the purpose of inspecting the work being there performed for his employer, and who is lured into an unknown danger by the assurance that the special danger is over. The declaration of the foreman cannot be properly confined to the men actually employed; it was made generally to the “ boys,” and the plaintiff’s intestate was there in connection with the work actually under way, and he was not at some remote [676] point where he was not expected to he, or engaged in anything on his own account, but was going forward to the point of inspection because the foreman had declared that it was all over, and he had no reason to expect any other dangers than those which were obvious to him through his experience in the work. He took the risks of fall over debris, or of detached rocks falling upon him, but he did not assume the risks of the defendant’s negligence in failing to properly explode the dynamite which had been placed for the purpose of making the excavation which he was there to inspect. These were matters which the jury was peculiarly qualified to pass upon, taking the evidence in connection with their varied experiences and their common knowledge of practical work, and the evidence is sufficient to support the necessary findings of fact involved in the proposition. The judgment and order appealed from should be affirmed, with costs. Hirschberg, P. J., Rich and Miller, JJ., concurred; Jenks, J., read for reversal.