#### Bela Mekki, Respondent, *v.*Holbrook, Cabot & Rollins Corporation, Appellant.

First Department,

July 9, 1915.

Master and servant — negligence—injury to employee in tunnel by falling rock — when doctrine of safe place to work not applicable.

Where, in an action under the Employers’ Liability Act to recover for personal injuries, it appears that the plaintiff while working in a tunnel, assisting in throwing broken rock into a car, was injured by a fall of rock from the roof, although a few hours before the roof of the tunnel had been properly ‘ scaled ” by the defendant’s employees and the loose rock removed, it is reversible error to charge that the common-law rule as to safe place to work applies, and to leave the question to the jury as to whether or not the plaintiff was given a safe place.

Testimony by the plaintiff that his foreman had ordered him to work at the place where he was injured, after having his attention called to the fall of a small stone, and having promised to fix it, presented a question for the jury, although not corroborated.

The evidence was insufficient to establish negligence on the part of the defendant in sealing the walls of the tunnel and in inspecting them.

Scott, J., dissented.

Appeal by the defendant, Holbrook, Cabot & Rollins Corporation, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 22d day of January, 1915, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 20th day of January, 1915, denying defendant’s motion for a new trial made upon the minutes. Defendant further appeals from an order entered in said clerk’s office on the 31st day of December, 1914, denying its motion to preclude plaintiff from giving certain evidence upon the trial, and also from an order entered in said clerk’s office on the 7th day of January, 1915, granting plaintiff’s motion to amend an order theretofore entered for a further bill of particulars.

The .action is one to recover for. damages under the Employers’ Liability Law (Labor Law (Consol.. Law's, chap, 31; Laws of 1909, chap. 36], art. 14, as.,amd..by Laws of.1910, .chap. 352).

*720*Benjamin Patterson*of counsel *[George Bell*with him on the brief], for the appellant.

*Don R. Almy,*for the respondent.

Clarke, J.:

The defendant had a contract for the construction of the Catskill aqueduct. At Sixth street and Third avenue the tunnel was over 700 feet below the surface. The work was carried on night and day by three shifts working eight hours each. The plaintiff was a mucker engaged in shoveling the blasted rock into cars. He had been on this job more than two weeks. His hours were from eight in the morning to four in the afternoon. On the day before the accident the defendant removed certain timbering which had been in place for some time. This timbering consisted of three frames, called bents, composed of ten by ten inch timbers placed six feet apart so that from the first to the last bent was a space of twelve feet. This timbering had been placed as a precautionary measure solely to sustain a rock in the roof of the tunnel, about ten feet long, which projected about two feet, during the process of construction until the time came to trim. There was no necessity for placing the timbering for any other purpose. The rock was solid. At the time of the accident the tunnel had been completely driven, and the trimming was being done: It was not practicable to do that work at the *locus in quo*while the timbering was in place. On the day before the accident, and before the removal of any of the timbering, holes were bored in this rock, and on the same day, after the timbering was removed, these holes were filled with explosives and this overhanging rock was blasted or “ shot” out of the roof. All this was done on the day before the accident and while the plaintiff was there. Immediately after the firing of this shot, plaintiff’s shift being over, he quit work and came back the next morning at eight. In the intervening sixteen hours work had been continued by the other shifts. Cameron, the night superintendent, who had eight years7 experience in tunnel work and was on duty from eight o’clock in the evening'of the night before the accident until eight o’clock the next morning when plaintiff went to work, testified that he saw the foreman take his men in *721there and they scaled the place thoroughly and sounded the rock and when it was in shape they went back and worked again; that he examined that work after it was done and found it was perfectly safe; that the condition of the roof before he left in the morning at eight o’clock was all right; that he examined it and inspected it; that he sounded the rock after they got through scaling and there was nothing there to be taken down. So, as far as he could see, it was all right. Uydur, a driller with five years’ tunnel experience, testified that the day before the accident after the shot was fired he and another driller had scaled for one hour after the shot was fired; that on the next morning he went to work at eight o’clock; that they were scaling when they first came down in the morning. “ Get hold of an iron bar and scale the loose rocks down and after that we were getting ready to start to drill after we knock all the loose stuff down; ” that they did not leave any loose stones. Samarsky, who was plaintiff’s foreman, and had been foreman for eight years in tunnels, testified that he had two drill runners with him when the accident happened — that the first thing in the morning he had scaled' out. Pie took the two drill runners, and his two helpers, they had eight-pound hammers and steel bars, “ and one man that has the steel bar reach up and pinch all the rock that he sees is loose * "" * strikes the rock with the bar "' * * if the rock is loose they put the bar in the crack and hit it with a hammer and knock the stones down; ” that after he had gone through this operation that morning there was no evidence to him that there was any stone loose in the roof; that he did not know or believe that there was any stone loose in the roof before the accident; that he had four men assisting him that morning before the muckers were put to work. There was other evidence as to scaling and inspection.

The plaintiff’s story was that at about half past eight a small sized rock fell down; that he jumped away and called the foreman and showed him what had happened; that the foreman came and looked at it and told plaintiff, “I will have it fixed” and “to go down and work; ” that he went on working and that between nine and ten a little rock fell on his neck; that *722he tried to jump away and hollered, “Look out everybody,” but a big rock fell, rolled over, caught him on his left hip, knee and feet and caused the injuries complained of.

There is no doubt that the plaintiff was injured by a fall of rock from the roof. But no one corroborates his testimony as to an earlier fall of a small stone at half past eight and the foreman positively denies it as well as any conversation with plaintiff about it or telling him he would fix it. ■

The evidence in regard to scaling is conclusive. Indeed, the learned court charged: “If the scalers failed to discover the danger of the rock falling after they had been directed to do so by the foreman, or if they omitted to properly scale, then the injury to plaintiff resulted from the negligence of the scalers, and for that negligence, defendant is not liable.” He also charged: “ Risks inherent in the work and which remain after the master has used reasonable care are necessary risks for which the master is not responsible. ”

The defendant asked the court to charge that the common-law rule of the safe place to work does not apply to the facts in this case, which was denied and exception taken. He did charge: “The master is also chargeable by law with the duty to provide an employee with a reasonably safe place in which to work. ” “ Where the place was prepared for the servant, when he began work, or where he began work, with an assurance of safety, then the rule does apply.” “ The duty to provide a safe place is one which the master cannot delegate to relieve himself from liability. ” “To summarize. By the act of the foreman, by the failure to perform or give the plaintiff a safe place, was the defendant negligent ? If he was, he is liable.”

The defendant excepted to that part of the charge which left to the jury as a question of fact whether or not this plaintiff was given a safe place.

We think that the doctrine of safe place was not applicable to the facts of this case. *(Citrone*v. *O’Rourke Engineering Const. Co.,*188 N. Y. 339; *Henry*v. *Hudson & Manhattan R. R. Co.,*201 id. 140.) And that it-is distinguishable from-our recent decision in *Bitolio*v. *Bradley Contracting Co.*(166 App. Div. 836). We think the error in-the charge as to safe place to work requires reversal, and that the verdict was clearly *723against the' weight of evidence as to negligence in scaling and inspection. We cannot, however, say there was no evidence to go to the jury, because plaintiff testified that his foreman had ordered him to work at the place where he was injured after having his attention called to the prior fall of the small stone and having promised to fix it. The judgment and order denying a new trial appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ingraham, P. J., and Laughlin, J., concurred; McLaughlin, J., concurred in result; Scott, J., dissented.

Judgment and orders reversed and new trial ordered, with costs to appellant to abide event.