#### Sidney Tisdale, Respondent, *v.*Geo. W. Jackson, Inc., Appellant.

Second Department,

November 28, 1913.

Master and servant — negligence — injury to employee by fall of loose stone from roof of tunnel — assumption of risk.

Where, in an action at common law for personal injuries, alleged to have been caused by the failure of the defendant to adopt and enforce a proper method of doing the work, it appeared that the defendant, a contractor for aqueduct work, was blasting a tunnel from the base of a shaft; that just after plaintiff had been directed by defendant’s foreman to work at drilling in a certain place a stone fell from the roof of the tunnel and injured him; that although plaintiff had noticed the loose stone and had started to dislodge it, he had been told by the foreman not to bother with it, and, upon his own judgment that it would not fall while he was at work, ceased in his attempt to remove it, and that both the plaintiff and foreman were experienced workmen, the plaintiff voluntarily took the risk.

Burr and Carr, JJ., dissented.

• Appeal by the defendant, Geo. W. Jackson, Inc., 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 21st day of November, 1912, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 9th day of December, 1912, denying defendant’s motion for a new trial made upon the minutes.

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      *John H. Jackson [Ambrose F. McCabe*and *Lyman A. Spalding*with him on the brief], for the appellant.

*Thomas J. O’Neill [L. F. Fish*with him on the brief], for the respondent.

Jenks, P. J.:

This is a common-law action by servant against master for failure to adopt and to enforce a proper method of doing work. The defendant, a contractor for aqueduct work, was blasting a tunnel from the base of a shaft. First an upper section of the tunnel was removed for some distance, and then the corresponding lower section. After a blast, the debris was taken away (called “ mucking ”), and then the usual method of doing this kind of work was to sound and to test the walls and roof to discover any “loose stone” partly dislodged by the blast. This is called “scaling.” The work was constant and was doing by three shifts of men laboring for 8 hours respectively. The plaintiff went to work for the first time in a shift at 4 p. M. of October 20, 1910. The shift was made up of Foreman Gordon, 4 drillers and 4 helpers. The plaintiff testifies that a blast had been fired before his shift went down the shaft, that after it went down, “mucking” was done 'by the shift for some hours, and thereafter drilling was begun between 8 and 9 P. M. He testifies that he was directed by Gordon to work at drilling in a certain place, and just after he had begun his task a stone that had been loosened by the blast fell from the roof of the tunnel and injured him. The plaintiff contends that there had been no “ scaling ” done. There was absolutely contradictory testimony upon this issue. The learned court in its instructions to the jury limited the defendant’s negligence to its duty of establishing a reasonably safe method of work and a reasonably vigilant oversight in maintenance thereof, and submitted the specific question — what degree of “scaling,” if any, was required, and if not exercised, was such failure the proximate cause of the accident ? I shall not discuss the question whether the proof was sufficient to justify a finding upon the issue of “scaling” in favor of the plaintiff.

The plaintiff, 30 years old, had labored at tunnel work for 15 *296years, On his direct examination he testifies that during the “mucking” he saw this particular stone, and that it was “ loose,” tried it, and hit it with an iron bar, but that Gordon took the bar away, saying: “Don’t be bothered with taking down that ground; that ground will stand this shift while we are working.” The plaintiff says that he believed Gordon. On his cross-examination he reiterates his “broad experience” of 15 years at this kind of work, including “mucking,” “scaling” and drilling. He admitted that when he saw a “loose stone ” he knew without information from any one that it was likely to fall. He testifies that he saw this particular stone which he began to take down, for he knew that otherwise it would fall. He says that Gordon “ stopped ” him. His language was: “he told me not to bother with it, that would stand this shift, so I had to stop. Q. You saw that was loose ? A. Yes. Q. You thought that would fall ? A. *I believed that would fall. I did not think it would fall on that shift.** * * I believed in the foreman, what he say *(sic),*but I tried to take it down. Q. You took the foreman’s word ? A. Yes, sir. * * * Q. You were going to take it down *%*A. I was going to try to. * * * Q. And Gordon told you not to take it down ? A. Not to take it down. Q. And then you stopped ? A. *Not to bother with it, didn’t say not to take it down. Not to bother with it.”*I think that the case is not complicated with the question of coercion by Gordon. (See Labatt Hast. & Serv. § 383.) Gordon had expressed the opinion that the stone would not fall during the work of that shift, and the plaintiff testifies that he was of the same opinion. And so when Gordon said “ Not to bother with it ” and the plaintiff ceased his attempt at dislodgement, he did so upon his own judgment that the stone would not fall while he was at work. It does not appear that the plaintiff’s knowledge of the danger was imperfect as compared with that of Gordon. The latter is not shown as possessed of greater experience or of wider knowledge. The plaintiff says of Gordon: “I had seen him around at times for five or six years. I know he was a pretty experienced man, too; he has had quite an experience at this same kind of work.” How, then, can plaintiff be heard to say that he went about his work *297contrary to his own judgment, in reliance upon Gordon’s more experienced judgment ? In fine, the plaintiff comprehended the danger that this *“*loose ” stone would fall some time, and, therefore, attempted to dislodge it, but when Gordon told him that he should not bother with it, that it would not fall during the work of that shift, plaintiff being of like opinion proceeded without hesitation or objection to his regular work of drilling under Gordon’s direction. He thus voluntarily took the risk. Gordon’s judgment may have confirmed, but it did not supplant the judgment of the plaintiff.

Labatt on Master and Servant says (2d ed. § 1375): “ The effect of the servant’s knowledge where his assumption of the risk is relied upon is open to no doubt. If that knowledge is imperfect, and excusably so, the action is, upon general principles, not barred. But an assurance that appliances are in good condition manifestly cannot prevent the operation of a defense which is regarded as completely made out, when it has been proved that the risk was known to and comprehended by the servant.” (See *Crown*v. *Orr,*140 N. Y. 450; *Graves*v. *Brewer,*4 App. Div. 327; *McCarthy*v. *Washburn,*42 id. 252.)

The judgment and order must be reversed and a new trial must be granted, costs to abide the event.

Putnam, J., concurred; Thomas, J., concurred upon the grounds stated in the opinion, and also upon the further ground that no negligence on the part of defendant on the occasion in question is shown, and that plaintiff assumed the risk of any danger that arose from the method of carrying on the work; Burr and Carr, JJ., dissented.

Judgment and order reversed and new trial granted, costs to abide the event.