#### Vincent Feola, Plaintiff, *v.*Orange County Road Construction Company, Defendant.

Second Department,

December 30, 1908.

Master and servant—negligence — safe place to work—assumption of risk.

Plaintiff was employed in defendant’s stone quarry to dig stone after the firing of blasts. As the work progressed it was deemed expedient to remove a tree standing near the edge of the quarry. One blast having been exploded under it without result the foreman directed the men to prepare for setting off another blast. While they were so engaged the tree fell and injured plaintiff, who was not engaged in digging the holes, but was working some feet distant from the tree.

*Held,*that the master was not negligent in failing to provide a safe place to work;

That the blasting of the free was a detail of the work which the master had a right to intrust to a competent foreman, and that plaintiff assumed the open and obvious risks.

Motion by the plaintiff, Vincent Feola, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s evidence upon a trial at the Kings County Trial Term in February, 1908.

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      *Ralph G. Barclay [Robert Stewart*with him on the brief], for the appellant.

*John C. R.*Taylor, for the respondent.

Woodward, J.:

The pleadings as originally made in this case set out a cause of action under the Employers’ Liability Act (Laws of 1902, chap. 600), alleging negligence on the part of defendant’s foreman, acting as superintendent, in permitting a tree to fall upon him while engaged in working in a stone quarry. Upon the trial it developed that the plaintiff had not served the notice required by statute, and over the defendant’s objection and exception the plaintiff was allowed to amend his complaint and proceed at common law. It does not appear necessary to determine whether the plaintiff could be permitted to do this ; his cause of action under the Employers’ Liability Act consisted in the alleged negligence of the foreman in removing a tree from the top of the embankment near where the work of getting out stone was in progress, while the only ground of negligence urged under the common-law cause of action is that the plaintiff was not provided with a reasonably safe place in which to perform his work. The causes of action- are radically different. However, the court refused to permit the case to go to the jury, and directed that the exceptions be heard in the first instance by this court, and as the cause of action which was tried clearly could not be maintained, it is sufficient to dispose of the case upon that ground. It seems the stone quarry was about twenty feet deep; that the plaintiff was employed with a pick, crowbar and other appliances, in digging down the stone after the firing of blasts; that on the day» of the accident the defendant’s foreman, in the prosecution of the work, found it necessary to remove a tree some seventy feet tall from a point on the embankment above the place where the plaintiff was at work; that he ordered the workmen to drill holes under the roots of this tree, and, after getting the men all out of danger, a-charge of dynamite was exploded under the tree. It did not fall, as was expected, and the foreman made an examination of the tree and then directed that the men come back and drill more holes, saying that at noon they would throw down the tree. He at the same time directed an Italian foreman, who interpreted 1ns *437orders to the workmen of that nationality, to make a further examination to see what roots were not cut off by the blast. The plaintiff was not one of the men engaged in drilling the holes, but was at work down in the quarry, some feet distant from the tree. About fifteen minutes after the blast was fired, and while the men were at work preparing for the further blasting of the tree, it suddenly fell, striking the plaintiff and working the injuries for which he seeks recovery. There is no complaint that the defendant had not supplied a reasonably competent foreman ; there is no suggestion that the taking down of this tree was not a mere incident in the performance of the work of getting out stone at this quarry, and just what duty the defendant owed to the plain tiff, which was not performed, is not clear to us. The suggestion that the presence of this tree upon the embankment was such a menace in and of itself that the defendant had failed in its duty to provide a safe place for the plaintiff to perform his work, is drawing too fine a point to be practical; the tree was not a menace on other days, or upon that day, until the act of the foreman in blasting away the roots made it topple over, and this, we must assume, was rendered necessary by the progress of the work. It would not do to keep on taking out the foundation from under the tree; it was the part of prudence, as the excavation neared the tree, to remove the same, and the foreman was engaged in doing this when the accident resulted. It was as much a detail of the work as it was to blast down the rock which underlaid the roots of the tree, and the defendant had a perfect right to intrust this detail to a competent foreman, and the plaintiff accepted the risks of the employment which were open and obvious to him, after the defendant had performed its duty. The case of *Perry*v. *Rogers*(157 N. Y. 251) is ample authority for the disposition which has been made of this case, and we see no reason for continuing the discussion.

The order dismissing the complaint should be affirmed.

Jenks, Hooker, G-aynor and Rich, JJ., concurred.

Plaintiff’s exceptions overruled and judgment dismissing complaint affirmed, with costs.