8 N.Y.S. 717 | N.Y. Sup. Ct. | 1890
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 tils 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 dynamite, 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 danger 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 or 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. Mining Co., 99 N. Y, 368, 2 N. E. Rep. 24.
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.
Neither 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.
Many 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.
