#### Nicola Lofrano, Resp’t, *v.*The New York & Mount Vernon Water Co., App’lt.

*(Supreme Court, General Term, Second Department,*

*Filed February 10, 1890.)*

1. Master and servant—Negligence.

Plaintiff was employed by defendant as a day laborer. He was set at work thawing out dynamite cartridges before a Are by the foreman without warning as to the danger, and was injured by an explosion of one of said cartridges. *Held,*that there was a violation of the duty which defendant ovved to its servant, and that it was liable for the foreman's act.

2. Same—Contributory negligence.

The servant is not guilty of contributory negligence where, assuming the safety of the service, he simply obeys the orders of the foreman and does no more than is necessary to carry them into execution.

3. Same—Bisks oe employment.

Where the danger is not open or apparent, the servant assumes only the risks incident to the service after the master has used proper care and caution for his safety and preservation.

Appeal from judgment in favor of plaintiff, and from order denying motion for a new trial.

On the 22d day of December, 1886, the plaintiff was blown up by the explosion of a dynamite cartridge. Both of his eyes were put out and both of his arms were so badly shattered that they had to be amputated above the elbow. A large piece of his right thigh, almost up to the main artery, was tom out, and in many other ways he was so terribly lacerated that it seemed impossible he could live.

At the time of this explosion the plaintiff was employed by the defendant as an ordinary day-laborer, in digging out and improving a reservoir owned by the. defendant and located at or near Pelhamville in tile county of Westchester.

The work was under the direction and supervision of a foreman named W. L. Wilcox, who hired and discharged the men and directed them what to do.

On the day above named the foreman directed the plaintiff to heat three frozen dynamite cartridges in front of an open fire, and as soon as one side should be -soft, to turn the other side to the fire. He did not tell the plaintiff of the danger to which he *558was thus exposed, but simply ordered him to thaw out or soften, these dynamite cartridges in the manner above set forth.

The plaintiff, "knowing nothing of the danger, did as he was directed, and while he was feeling one of these cartridges, to see if it was soft enough on one side to turn around, it exploded.

*Isaac K*Mills, for app’lt; *Joseph S.*Wood, for resp’t.

Dykman, J.

Under the charge of the trial judge in this action no verdict could be made for the plaintiff unless the jury found that he was unskilled in the use of dynamite and did not assume to understand its management, and to be able to conduct the operation of blasting in all its departments: The charge even contains this emphatic language. “ If this plaintiff, although he may have been wholly ignorant of the risks of handling dynamite, told this company that he was capable, the law takes him at his word, and whether he was ignorant or not, he cannot recover for an accident which happened in the course of his employment”

The jury having rendered a verdict for the plaintiff, he is before us on this appeal a man without experience in the use of dyna-, mite, and without a knowledge of the dangers attending its use and without a profession of such knowledge.

In that state he was directed .by the foreman of the defendant to warm a quantity of dynamite preparatory to its use, and while in the performance of that duty some of the substance exploded and caused the injury to the plaintiff for which he seeks compensation in this action.

The plaintiff was not employed to perform the services he was directed to discharge on the occasion of his injury, and did not, therefore, assume the risks incident thereto, and such perils were not apparent; neither was any warning given to the plaintiff of the dangers accompanying such service, and it was to him unknown.

The defendant, therefore, violated the duty it owed to the plaintiff by setting him in a dangerous place at a perilous service, without warning or admonition of any kind, instead of providing him with a safe place and safe implements as the law required, and as none of those duties could be delegated to the foreman, so as to exonerate the company, the defendant is liable for the act of the foreman. *Pantzar*v. *Tilly Foster Iron Co.,*99 N. Y., 368.

The foregoing view admits no contribution of negligence by the plaintiff. He obeyed the orders of the foreman and did no more than was necessary to carry them into execution. Upon the assumption of the safety of the service he was justified in all that he did, and as we have seen, if there was danger lurking around the service and incident thereto, he was entitled to warning which he did not receive.

Heither can he be defeated because he assumed the risk of the service. As the danger was not open and apparent to him with his knowledge, he assumed only the risks incident to the service after the defendant had used proper care and caution for his safety and preservation, and as we have also seen, the company failed in the performance of that duty which the law cast upon them.

*559Many objections and exceptions are presented by the record, both to the rulings and charge of the trial judge, but they disclose no error.

The judgment and orders denying the motion for a new trial should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.