Cullen v. Norton

Decision Date10 March 1891
Citation126 N.Y. 1,26 N.E. 905
CourtNew York Court of Appeals Court of Appeals

Appeal from supreme court, general term, third department.

Action by Stacia Cullen, administratrix of James Cullen, deceased, against Frederick O. Norton, for, as alleged, negligently causing the death of plaintiff's intestate. Intestate was employed by defendant in a cement quarry, and was killed by the unexpected explosion of a blast near which he was working under orders of defendant's foreman, Patrick Doran. From a judgment for plaintiff, which was affirmed by the general term on appeal, defendant appeals.

RUGER, C. J., and O'BRIEN, J., dissenting.

J. Newton Fiero, for appellant.

David M. De Witt, for respondent.


Assuming Doran to have been negligent, is the evidence in the case of such a nature as to show that the defendant was responsible for it, or was the negligence that of a fellow-servant of the intestate? I think it was the latter. A master is bound to furnish reasonably safe and suitable implements for the use of the servant, and a reasonably safe place of employment, considering the nature of the employment itself. There is very little room for disagreement as to the principles of law in this class of cases, but the difficulty lies in their application to the facts of each special case. Did the defendant discharge this duty of furnishing, in the first instance, a reasonably safe place for the servant to do his work? The place was a cement quarry, and the work had proceeded so far that the business had to be conducted by blasting. To blast at all is to encounter some danger; and hence, in this case, all the danger incident to the working of the quarry, under conditions requiring frequent blasts, the workman took the risk of when he accepted employment in the quarry. The danger of accident from the negligence of a fellow-workman is part of the risk assumed. The master was liable for the act of Doran in placing the deceased at work where he did, provided such act was of a character which the master was required to perform as master. This is the principle decided in Crispin v. Babbitt, 81 N. Y. 516, and it has never been receded from in this court. If Doran acted as master, the defendant is liable; while if he acted in his capacity as an employe, and not as a representative of the master, his negligence does not rest upon the master. The quarry was the place where the work was to go on, and the master was bound to make it a reasonably safe place for such work, considering its character, and the necessarily dangerous nature of the work itself. For the manner in which the persons employed in the quarry should themselves perform their work the master was not liable. It is not claimed that the master did not furnish a proper place to work, in the first instance; that is, when the deceased was employed, the quarry was as safe as any quarry is where frequent blasts are being fired off. But the manner of the performance of each of the various details of the work by which, as a whole, it was to be conducted, rested necessarily upon the intelligence and care and fidelity of the servants to whom these duties were intrusted. It cannot be that every time a blast was exploded, and the men came back, the manner of their distribution for work was a duty of the master; and that the order of a foreman, mistakenly or negligently given, must be regarded as the order of the master in filling a duty to furnish a safe place to work in. It is, as it seems to me, a detail of the working or management of the business, the risks attending which have been assumed by the party taking employment. The case of Pantzar v. Iron Co., 99 N. Y. 368, 2 N. E. Rep. 24, was entirely different. The master was there held liable because, through the superintendent, it placed the plaintiff in a position of danger not necessarily connected with or part of the conduct of the general work itself for which plaintiff was employed, and which danger was not caused by any negligent act or omission of a fellow-servant. The plaintiff, while working in the pit of the mine, was injured by the fall of a mass of rock from an overhanging cliff, not caused by the negligence of any workman, and not a natural or necessary part of the danger arising from the working of the mine itself. The superintendent and foreman had been warned of the danger before the plaintiff went to work at the place where he was injured, and they took no precautions to support the rock while the men were at work under it, although it was entirely practicable to do so. We held, in such case, the master failed to furnish a reasonably safe place to the plaintiff to continue his work.

In this case it is the ordinary one of choosing a method, a time, and a place for continuing the work in the quarry; and this involved questions of judgment and discretion, committed in this instance, it would seem, to Doran. He, it may be conceded, mismanaged or misjudged the matter, and, after placing the deceased at work, negligently or improperly placed others at work too near the hole in which the powder had not exploded, and...

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    • April 1, 1902
    ...Co., 70 N. H. 390, 47 Atl. 613; Hussey v. Coger, 112 N. Y. 614, 618, 20 N. E. 556, 3 L. R. A. 559, 8 Am. St. Rep. 787; Cullen v. Norton, 126 N. Y. 1, 26 N. E. 905; Daves v. Pacific Co., 98 Cal. 19, 32 Pac. 708, 35 Am. St. Rep. 133; Hermann v. Mill Co. (D. C.) 71 Fed. The obligations of the ......
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    ... ... movement to be executed in the handling of trains. As is well ... said by the court of appeals in Cullen v. Norton, ... 126 N.Y. 1, 26 N.E. 905: "The manner of the performance ... of each of the various details of the work by which, as a ... whole, ... ...
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