Ulster County NyArchives Court.....Cullen, Stacia Vs. Frederick Norton 1889
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Source: Reports Of Cases - N Y
Written: 1889

STACIA CULLEN, as Administratrix, etc., of JAMES CULLEN, Deceased, Appellant, v. 
FREDERICK O. NORTON, Respondent.

Duty of the owner of a mine, to his servants — submission to the jury of the 
question, as to his negligence — what risks the servant does not assume.

On the 4th day of June, 1887, the plaintiff's intestate, one Cullen, who was a 
qaurryman or miner in the employ of the defendant, was killed by the falling of 
rocks from an unexpected discharge of a blast in the defendant's cement quarry 
in the town of Rosendale. On that day eleven holes had been drilled and charged 
in a perpendicular breast of rock, which were fired at one time, one of which 
did not explode. The attention of the defendant's foreman in charge of the work 
having been called to the unexploded blast he remarked that it would not pay to 
bother with firing it, and gave directions to drill other holes around and near 
it and pointed out the places, and directed Cullen and other workmen to commence 
drilling upon the same breast of rock about fifteen or twenty feet beneath the 
unexploded blast. While the men were drilling above and Cullen below it the 
unexploded blast unexpectedly exploded, and the rocks thrown out fell upon 
Cullen and killed him.

Upon an appeal from a judgment dismissing the complaint, upon the close of the 
plaintiff's testimony, in an action brought to recover damages occasioned by the 
death of the intestate:

Held, that one of the duties of the master was to furnish his servant a safe and 
proper place in which to prosecute his work; that this duty continued to be the 
master's, no matter to what subordinate servant he delegated its performance. 

That by placing the intestate at work directly underneath the unexploded blast, 
while other servants were drilling the rock within two feet of it, exposed him 
to the danger of injury from the falling pieces of rock, if by any chance the 
blast should be accidentally exploded, and, in view of all the circumstances, 
the question as to whether such exposure was negligence on the part of the 
master should have been submitted to the jury.

Turner v. Chateaugay Ore Company (21 Weekly Dig., 40); Loughlin v. State of New 
York (105 N. Y., 159); Crispin v. Babbitt (81 id., 516); McCosker v. Long Island 
Railroad Company (84 id., 77); Scott v. Sweeney (34 Hun, 292) distinguished.

It was urged that the deceased knew all about the facts and voluntarily assumed 
the risks, and thus by his contributory negligence precluded a recovery.

Held, that this was a question for the jury.

Where a servant does not assert his judgment, in opposition to the supposed 
better judgment or stronger will of his master, the law usually allows a jury to 
determine whether he voluntarily assumed the risks, or acted in reliance upon 
the judgment of his master, or out of a constrained acquiescence in the rule of 
obedience which his relation as servant imposed.

Appeal from a judgment dismissing the complaint, directed by the court upon the 
close of the plaintiff's testimony, upon a trial at the Ulster Circuit before a 
jury, which was entered in the office of the clerk of Ulster county on June 25, 
1888.

The plaintiffs intestate, James Cullen, was killed on the 4th day of June, 1887, 
by falling rock resulting from an unexpected discharge of a blast in the 
defendant's cement quarry in the town of Rosendale. Cullen was a quarryman or 
miner in the employ of the defendant. Eleven holes had been drilled and charged 
in a perpendicular breast of rock. They were fired at one time, but only ten 
exploded. Patrick Dolan was defendant's foreman in charge. His attention was 
called to the unexploded blast, and the boss blaster said, "Fire it." Dolan 
remarked that it would not pay to bother with it, and he gave directions to 
drill other holes around it and near it, and pointed out the places. He then 
directed Cullen and other workmen to commence drilling upon the same breast of 
rock, about fifteen or twenty feet beneath the unexploded blast. Air drills were 
used by Cullen and by the men above him. While the men were drilling above and 
Cullen below, the unexploded blast unexpectedly exploded, and the rock thrown 
out fell upon Cullen and killed him.

D. M. Dewitt, for the appellant.

J. N. Fiero, for the respondent.

Landon, J.:

Upon the evidence, we think this case ought to have been submitted to the jury. 
The plaintiffs intestate took upon himself all the risks incident to the 
dangerous character of his service, except those that might befall him in 
consequence of his master's negligence. (Pantzar v. Tilly Foster Iron Mining 
Co., 99 N. Y., 308.) One of the duties of the master was to furnish his servant 
a safe and proper place in which to prosecute his work. (Id.) This duty 
continued to be the master's, no matter to what subordinate servant he delegated 
its performance. (Id.) The defendant's foreman was intrusted with its 
performance, and hence stood in place of and represented the master in assigning 
the servant to his fatal place of labor. If it was negligence to assign him to 
this place, the negligence was the master's. This place was upon the bench of 
the breast of perpendicular wall of rock, fifteen or twenty feet beneath the 
undischarged blast, within two feet of which two other work, men were engaged in 
drilling holes. It may be that the best method of treating the undischarged 
blast was to drill holes around it, charge and explode them, and thereby blow 
out the rock which held it. A mistake in that respect might be merely a mistake 
in judgment as to the best method of treatment of a dangerous situation, and not 
at all attributable to negligence. But to place the servant at work directly 
underneath the unexploded blast, while other servants were drilling the rock 
within two feet of it, exposed him to the danger of injury from the falling 
pieces of rock, if, by any chance, the blast hould sbe accidentally exploded. It 
would be for the jury to say, in view of all the circumstances, whether such 
exposure was negligence on the part of the master.

In Turner v. Chateaugay Ore Company (21 Weekly Dig., 40), decided by us, a hole 
had been charged and fired, but the explosion did not perform the service 
expected, and defendant's foreman told the plaintiff to drill it deeper. The 
fact was that in the discharge, some of the explosive material in the hole 
remained unexploded, and as the plaintiff was engaged in drilling the hole 
deeper, this material exploded and injured him. The risk was incident to the 
work, and would be great in any place and under any master. A sharp inspection 
of the hole before commencing to drill it would be the ordinary duty of the 
workman. If it had been made by the foreman, he would simply be doing servants' 
work, and his negligence would be the work of a fellow-servant.

Loughlin v. State of New York (105 N. Y., 159) is cited. There the captain of 
the State's boat, and the plaintiff and other workmen, under the direction of 
the captain, were all digging clay from a bank and loading it upon the boat. In 
the prosecution of this work the captain first loosened the overhanging earth 
and then set the plaintiff to digging underneath. The loosened earth fell upon 
the plaintiff and injured him. The court held they were all servants together, 
doing servants' work; and though the captain was in charge, yet he was only in 
charge of the details of servants' service. So it was in Crispin v. Babbitt (81 
N. Y., 516); McCosker v. Long Island Railroad Company (84 id., 77), and in Scott 
v. Sweeney (34 Hun, 292), decided by us. Here the plaintiff's intestate had 
nothing to do with the unexploded hole; he was not co-operating with respect to 
it, but was, by the direction of the foreman, set to work to make new holes 
fifteen or twenty feet beneath it. The foreman was in no way working with him or 
participating in the execution of any of the details of his work. The danger to 
which he was exposed was not incident to his work, but wholly incident to the 
place where he was assigned to do it. Here the defendant was in Europe, and his 
foreman represented him. When the foreman told plaintiff's intestate to go to 
work in this place of danger, he spoke with the authority of the master. He 
might have assigned him a place of labor remote from the danger of this 
unexploded blast. He substituted this place for the safe places at his command.

It is urged that the deceased knew all about the facts and voluntarily assumed 
the risks, and thus by his contributory negligence precluded recovery. This is 
for the jury. When a servant does not assert his judgment, in opposition to the 
supposed better judgment or stronger will of his master, the law usually allows 
a jury to determine whether he voluntarily assumed the risks, or acted in 
reliance upon the judgment of his master, or out of a constrained acquiescence 
in the rule of obedience which his relation as servant imposes. (Hawley v. 
Northern Central R. R. Co., 82 N. Y., 370.)

The judgment is reversed, new trial granted, costs to abide the event.

Learned, P. J., and Ingalls, J., concurred.

Judgment reversed, new trial granted, costs to abide event.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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