ways, works or machinery, for the rock in which the holes were drilled and which was being constantly blasted away cannot be regarded as a "way" provided by the master, neither is it works or machinery within the meaning of the statute.

APPEAL by the defendant, The New York Contracting Company Pennsylvania Terminal, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of June, 1910, upon the verdict of a jury for $8,000, and also from an order entered in said clerk's office on the 28th day of June, 1910, denying the defendant's motion for a new trial made upon the minutes.

John Conway Toole, for the appellant.

John Brooks Leavitt, for the respondent. LAUGHLIN, J.:

On the 10th day of February, 1908, plaintiff while in the employ of defendant in the capacity of attending a blaster, who was also one of its employees and in charge of a gang of five or six men engaged in blasting rock, was severely injured by the explosion of a blast of dynamite and he brought this action to recover damages. The defendant had the contract for making the necessary excavations for the Pennsylvania railroad terminal on Manhattan island, and at the time in question was making a cut or trench from seven to ten feet wide and about eight feet deep through the rock below the level of the main rock excavation for the terminal, in which ducts for the transmission of electric power were to be placed. The work was progressing from the east towards the west and had then reached a point about 120 feet west of Eighth avenue between Thirtysecond and Thirty-third streets. Rows of holes three inches in diameter, about eighteen inches or two feet apart, and about the same distance apart in the rows, and five or six feet deep were drilled in the rock in lines virtually parallel running northerly and southerly across the top of the unexcavated rock and then one or two rows at a time were charged with dynamite by the blaster and exploded together by electricity. The broken and loosened rock and earth were removed by another gang of men. The accident occurred on Monday before any blasting had been done at that

App. Div.]

First Department, February, 1911.

point on that day. The preceding Saturday the blaster in charge of this gang of men was absent and a blaster from another part of the work had been sent to take his place and he brought his own assistants with him. Plaintiff brought material to them but did not help prepare the blasts or give particular attention to their preparation thereof. Shortly before work was suspended on Saturday a row of holes was blasted and all of the blasts exploded, as was intended, throwing off the rock the width and depth of the trench and leaving practically a straight line of solid rock at the westerly end of the excavation. Evidently other holes had been drilled to the west at the time which were not ready to be and should not have been charged with dynamite. On Monday morning the drillers proceeded with their work. The plaintiff and the other members of his gang had been sent to another part of the work after the last blast was set off on Saturday and they resumed work at the same place on Monday but later on they were ordered back to this place to prepare two rows of holes for the insertion of the sticks of dynamite. When holes were drilled to the depth required it was the duty of the drillers to insert in the top of the hole a wooden plug in the form of a top to prevent material falling in which it would be necessary to remove before inserting the dynamite. When plaintiff returned to this place to assist in preparing the two rows for blasting, a driller was at work on a hole in the easterly row and toward the southerly end of it, which had not been drilled to the depth required. It seems that it rested with the blaster to determine by testing the depth of the holes whether they were drilled sufficiently deep and he had authority to require the drillers to return to a hole and drill it deeper after it had been left and plugged by them. The inference is that he had done that on this occasion, although it does not expressly so appear. Plaintiff and others of his gang first removed the plugs and cleaned out the holes in the second row from the trench they were excavating and, when they finished, the attention of plaintiff was drawn to the northerly hole in the first row or row nearest the end of the trench to see if it was clear. According to the testimony there was a plug in it and it had every appearance of being in the condition in which it had been left by the drillers. He removed the plug and started to insert a "Jigger steel,” which is a steel bar an inch in diameter and seven feet long, with a flat drill

First Department, February, 1911.

[Vol. 143. head on the lower end, and is used for hand-drilling and for crushing stone chips in cleaning out the holes; and when he poked the bar down in the hole to the depth of one, two or three feet, the explosion took place which inflicted the injuries. The fair inference is that the dynamite which exploded was in this hole. The plaintiff in his complaint charges negligence in failing to promulgate a rule for his protection in probing drill holes, in failing to furnish him with a safe place to work, and in failing to inspect the hole before placing him at work thereon. These charges relate to the liability at common law. He also charges a defect in the "ways" connected with the defendant's business at the point in question, which had not been discovered owing to the negligence of the defendant and of the person in its service intrusted with the duty of seeing that the "ways" were in proper condition, and failure to exercise proper superintendence over the work. These charges relate to a liability under the Employers' Liability Act (Laws of 1902, chap. 600; revised by Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], art. 14), and are, perhaps, sufficient to charge a negligent defect in "ways," if there were any question of "ways" in the case and negligence of a superintendent, for the defendant being a corporation must act through agents. (Harris v. Baltimore Machine & El. Works, 188 N. Y. 141.) The notice served under the Employers' Liability Act charges negligence in these two particulars, and contains the same charges of negligence with respect to liability at common law as are set forth in the complaint.

At the commencement of the trial a motion was made by counsel for defendant to require plaintiff to elect between holding defendant liable at common law, and under the statute, plaintiff objected and the motion was denied. This is only important as showing that counsel for plaintiff insisted throughout the trial on holding defendant on both theories.

At the close of plaintiff's case, counsel for defendant separately moved for a dismissal of the complaint with respect to liability at common law and under the statute. He then requested the court to rule as to whether the charges of negligence with respect to rules and safe place were to be submitted to the jury, and he also moved to strike out the allegations of the complaint with respect thereto, which motions were denied. He also requested the court to rule

App. Div.]

First Department, February, 1911.

that there was no question for the consideration of the jury with respect to a defect in ways, works or machinery. In answer to an inquiry by the court with respect to what was claimed in this regard, counsel for plaintiff said "That they did not have a safe place." The court thereupon declined to rule as requested. The defendant then rested its case and renewed its several motions, which were denied. During the discussion thereon, counsel for defendant drew the attention of the court to an admission made by counsel for plaintiff during the trial, to the effect that no negligence was claimed with respect to charging the holes with dynamite, and the admission was then substantially renewed; and at the close of the charge counsel for plaintiff, in consenting that the court charge a request made in behalf of defendant to the effect that there was no claim made that there was any defect in the method of charging the holes involved in the blast on Saturday, which was charged, said: "That is not the point in the case. We make no charge of negligence in putting the dynamite in. We charge negligence in failing to discover." An exception was duly taken to each ruling of the court to which attention has been drawn. In submitting the case to the jury, the court charged quite fully with respect to the duty of an employer of men to furnish them with a safe place in which to perform their duties and with respect to making rules for their protection. Counsel for defendant excepted to the submission of these questions to the jury and separately requested the court to instruct the jury that they could not predicate negligence on failure to make and promulgate rules and that the defendant was not bound to keep the place where plaintiff was working reasonably safe in view of the fact that it was constantly changing, and that the jury would not be warranted in finding that there was any defect in the ways, works or machinery connected with the business of the defendant, and he excepted to the refusal of the court to so charge. It scarcely requires argument after this statement of the issues presented by the pleadings and submitted to the jury to show that the verdict cannot be sustained. It is perfectly clear that at common law the action cannot be maintained on these facts, for the plaintiff's foreman and fellow-laborers would be deemed co-employees, the risk of whose negligence would be assumed by him, and the rule with respect to the duty of the

First Department, February, 1911.

[Vol. 143. mnaster to furnish a reasonably safe place for his employees while performing the work assigned to them has no application, where as here the men themselves were making and changing the place as the work progresses. (Capasso v. Woolfolk, 163 N. Y. 472; McCosker v. Long Island R. R. Co., 84 id. 77; Gmaehle v. Rosenberg, 178 id. 147; Perry v. Rogers, 157 id. 251; Vogel v. American Bridge Co., 180 id. 373; Foster v. International Paper Co., 183 id. 45; Citrone v. O'Rourke Engineering Const. Co., 188 id. 339; Russell v. Lehigh Valley R. R. Co., Id. 344; Toppi v. McDonald, 128 App. Div. 443; affd., 199 N. Y. 585; Bertolami v. United Engineering & Contracting Co., 120 App. Div. 192.) Moreover, on the facts here presented no negligence could be predicated on the failure of the defendant to make and promulgate rules for the safety of its employees. There is no evidence as to what rules, if any, it made and promulgated; and there is no evidence that any practical rule for greater safety had been adopted and followed by others engaged in like work. The evidence does not point to such a rule and the attention of the jury was not drawn to any particular rule that should have been adopted. It is evident, therefore, that the court erred in leaving the question of the liability of the defendant at common law to the jury, either upon the theory that it failed to furnish safe place for the plaintiff to work, or that it failed to adopt and promulgate proper rules for his protection. The court likewise erred in permitting the jury to find a verdict against the defendant on the theory that it was guilty of negligence with respect to some defect in its ways, works or machinery, for the provisions of the Employers' Liability Act with respect to ways, works and machinery manifestly have no application in the circumstances here disclosed. There was no defect charged with respect to "works" or "machinery;" but it is quite clear that there were no "ways, works or machinery" furnished or provided by the master. It would not do to hold that the rock in which the holes were drilled, and which was being constantly blasted away, was provided by the master as a "way" for the use of the employees, and argument is not needed to demonstrate that neither the rock in which the hole was drilled nor the dynamite which was inserted in it was any part of the "works" or "machinery" furnished or provided by the master for use in its business.

a