(91 Hun, 243.)

#### PERRY v. ROGERS.

(Supreme Court. General Term, Second Department.

December 2, 1895.)

Master and Servant—Safe Place for- Servant to Work in.

Evidence that a rock fell from a place where defendant had been blasting, striking one of his employes, at work below, and that a prudent examination would have detected the danger, shows a failure of the duty of defendant to provide his servants with a safe place to work.

Appeal from circuit court, Queens county.

Action by John Perry against John C. Rogers for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $5,000, and from an order denying a motion for a new trial, defendant appeals.

Affirmed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

*209William A. Jones, Jr., for appellant.

Gatlin & Nekarda (F. W. Gatlin, of counsel), for respondent.

DYKMAN, J.

The municipal authorities of the city of New York were constructing a road called a “speedway” along the side of the Harlem river, and the defendant Avas the contractor who was doing the work. On the banks of the river were high and precipitous rocks, which extended nearly to the iWer’s brink, and it became necessary to rend these rocks by the explosion of gunpoAvder or dynamite. That was done by commencing at the top of the cliff, and boring large holes in the rock, and throwing off a section of the face by exploding powder in the drill holes. That explosion would leave what was called a “bench,” lower down, which would be covered with broken fragments of rock. Such fragments were removed after each explosion to malte a clean surface for neAv drill holes. The plaintiff was in the employ of the defendant upon this work as a common laborer, and on the 19th day of July, 1894, he was ordered to go, with two other laborers, upon one of the benches, which was about 40 feet aboA'e the place where he was at work, and clear off the bench. While in the performance of that duty, a large rock fell upon him, and so crushed his foot that it became necessary to amputate the same aboAre his ankle, and this suit is for the recovery of the damages he has sustained from that injury. The evidence of the plaintiff and his witnesses was that the place from which the rock fell was about 7 or 8 feet above the bench where the plaintiff was working. While there was testimony on the part of the defendant tending to show that the rock slid upon the plaintiff ■while he was attempting to remove the same with his bar, both, theories were submitted to the jury, as we shall hereafter see. The case was tried at the circuit before a jury, and a A'erdict rendered1 in favor of .the plaintiff for $5,000. The defendant has appealed from the judgment and from the order denying the motion for a neAv trial on the minutes of the court.

A fair opportunity to avoid harm is sufficient to impose upon a. person the peril of his conduct, if, when judged by common experience, he is blameful for his act. It may now be assumed that the-stone which fell upon the plaintiff had been detached and loosened by a blast two or three days prior to the injury. Ordinary knowledge and experience teach us that the inspection and examination of the rock would have detected the insecurity and danger of the place where the plaintiff was set at work. The eA'idence adduced by the plaintiff tended to show that there were the marks of a drill on the stone, and that the same broke off from a drill hole; that there was a hole drilled down by the stone; that half the hole was left on the stone, which was burned by the powder. The menacing position of the stone was, therefore, easy of discovery. Turning, now, to the rules of law applicable to persons who sustain the relation of master and servant, we find it to be the duty of the former Lto use reasonable care to provide adequate and suitable implements for the use of the latter, and a safe and proper place for the prosecution of his labor. He was bound to give the reasonable inspec*210tion that a man of ordinary prudence would give. He. was bound to foresee whatever a prudent, intelligent man would have foreseen. “A prudent man foreseeth evil, and hideth himself.” Negligence arises from imputed or presumed foresight. In fact, negligence may be said to be the want of foresight. The circumstances which make men liable for their acts or omissions must be determined by experience; that is, whether the circumstances under which an act is committed are sufficient to sustain a charge of negligence must be determined by the common experience of mankind. The care which the law demands from the master cannot be delegated to a servant, so as to exonerate the master from responsibility to a servant who has sustained injury by reason of its nonperformance. Pantzar v. Mining Co., 99 N. Y. 372, 2 N. E. 24; Corcoran v. Holbrook, 59 N. Y. 517. Very different are the duties which the law imposes upon the servant, while he accepts the risks and hazards of the service m which he voluntarily engages, and must contribute the exercise of his faculties. He may assume that the master has performed his duty and used all reasonable diligence to make the place where he labors safe and secure. He assumes only the risks which are ordinarily incident to the employment, from causes which are open and obvious, or which are announced to him in advance. He does not assume the risk of the master’s negligence, and the master is negligent if he fails to discover insecurities and danger which could be determined by the exercise of reasonable care.

The theory of the defendant was met by the charge of the trial judge in this way:

> “If this stone had been detached, so that it fell upon the bench, and if this plaintiff, in prying stones that were supporting it, became injured, he cannot recover, because it is an accident, then, which resulted from the r ature of the employment itself. If the plaintiff, in removing stone from the bench, so conducts his work that the stone that supports another falls upon his foot and crushes it, that is his lookout; but if it falls six or eight feet, from the side of the hill above, and if a careful and prudent examination by the ma.ster would have revealed that danger, and he did not make the examination, or have it made, then that is another question. It is a question between the master and the servant as to whether the master did what he ought to have done' for the protection of the servant. * * * Because the plaintiff owes vigilance, he owes the exercise of his faculties to prevent the injury; and if an ordinarily prudent man should have seen and anticipated this injury, the plaintiff was bound to anticipate it, and, even if you find that the defendant was guilty of negligence, if you find the plaintiff was guilty of negligence, the action is gone. No action will lie in a case where the plaintiff contributes in any degree to the injury resulting.”

The verdict of the jury made under that charge closes all the avenues of escape against the defendant, and renders interference by the appellate court impossible. It follows, from the foregoing, that the motion to dismiss the complaint was properly denied, and if the exception to the charge is to be considered after the explanation of the judge, it presents no error.

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