Henry v. Hudson & M.R. Co.

• Decision Date: 28 February 1911
• Citation: 94 N.E. 623,201 N.Y. 140
• Court: New York Court of Appeals Court of Appeals
• Parties: HENRY v. HUDSON & M. R. CO.

201 N.Y. 140

94 N.E. 623

HENRY

v.HUDSON & M. R. CO.

Court of Appeals of New York.

Feb. 28, 1911.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Delia Henry, as administratrix of Patrick Henry, deceased, against the Hudson & Manhattan Railroad Company. From a judgment of the Appellate Division (139 App. Div. 913,123 N. Y. Supp. 1120), affirming a judgment for defendant on a nonsuit, plaintiff appeals. Reversed, and new trial granted.

M. Spencer Bevins, for appellant.

Wm. C. Cannon, for respondent.

CULLEN, C. J.

The action was brought by the personal representatives of a deceased employe against his employer to recover damages for the death of the employe. The defendant was engaged in constructing a tunnel in New Jersey. The tunnel was being driven through a mass of rock. The method of work was to blast the rocks at the head of the tunnel by a gang of men called ‘drillers,’ and the material cast down by the blast was loaded by another gang into a car and taken out of the tunnel. The plaintiff belonged to the last-named gang, who were called ‘muckers.’ It was also the duty of the blasters to remove or pull down any pieces of rock which, after the blast, might project or be loose and in danger of falling. On the occasion of the accident the plaintiff,with the others of his gang, was sent by his foreman to remove the excavated material at the end of the tunnel. While there a piece of loose rock fell upon him, causing his death.

The principle that the master is bound to provide his servant a safe place to work applies only where, in the conduct of the work, the master furnishes the place where the work is carried on. McGuire v. Bell Telephone Co. of Buffalo, 167 N. Y. 208, 60 N. E. 433,52 L. R. A. 437. It has no application to a case like the one before us, where the prosecution of the work itself makes the place to work. Di Vito v. Crage, 165 N. Y. 378, 59 N. E. 141. This distinction should be clearly borne in mind when dealing with a common-law action for negligence; for, while the master is liable for the conduct of his servants in failing to maintain safe the place where the work is to be done, his liability is much more limited for defects in the prosecution of the work. Neagle v. Syracuse, B. & N. Y. R. R. Co., 185 N. Y. 270, 77 N. E. 1064,25 L. R. A. (N. S.) 321. The common-law liability has been altered in this state in several respects by statute, but these statutes have no bearing on the case, as the accident occurred in New Jersey.

The failure of the blasters to remove...