163 N.Y. 472 | NY | 1900
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I am unable to distinguish this case from that of Perry v.Rogers; decided by us since the decision of the Appellate Division in this case. (
Nor can it be said of this case, as it was considered at the Appellate Division, that there was any evidence for the consideration of the jury that there had been an omission in the duty of inspection. The only evidence on the part of the plaintiff bearing upon inspection was general in its nature and with no especial reference to the situation upon the night in question. It was to the effect that after the blastings occurred, which had been previously described by the witness, "the contractors never did anything; that they never sent anybody around." On behalf of the defendants, it was testified by the day foreman that, after the blasts of the day preceding the night in question, he and his men had gone over the loose stone and had barred down all that seemed dangerous. The foreman of the night gang, particularly, testified that he had noticed this particular stone, or rock, which fell upon the plaintiff, and that he had tried to move it by use of the derrick, as well as by bars, without success. After the evidence was closed, the plaintiff was recalled, as was his principal witness who had given the evidence concerning the blastings and the custom of the contractors; but neither of them contradicted in any way the testimony of the foreman of the night gang. The effect of this direct and precise evidence given by the foreman of the plaintiff's gang and the failure to contradict it by the plaintiff and his witnesses, when recalled in rebuttal, did not seem to have been appreciated in *478 the court below. I regard them as determining features of the case.
As the case was left upon all the testimony, there was no question to be submitted to the jury; for the evidence that there had been an inspection of the work and that care had been exercised to remove the threatening danger was undisputed. If, therefore, it could be said that the master, in personally directing the plaintiff to perform his work at the place in question, had assumed some extraordinary duty of care, which I do not admit, it was not shown that he failed in its requirements.
The order of the Appellate Division should be reversed and judgment should be entered dismissing the complaint, with costs to these appellants in all the courts.
PARKER, Ch. J., O'BRIEN, HAIGHT, MARTIN, LANDON and WERNER, JJ., concur.
Order reversed, etc.