Mautsewich v. United States Gypsum Co.

• Decision Date: 11 April 1916
• Citation: 217 N.Y. 593,112 N.E. 471
• Parties: MAUTSEWICH v. UNITED STATES GYPSUM CO.
• Court: New York Court of Appeals Court of Appeals

217 N.Y. 593

112 N.E. 471

MAUTSEWICH

v.UNITED STATES GYPSUM CO.

Court of Appeals of New York.

April 11, 1916.

Appeal from Supreme Court, Appellate Division, First Department.

Action by John Mautsewich against the United States Gypsum Company. From a judgment of the Appellate Division (162 App. Div. 907,146 N. Y. Supp. 1100), affirming a judgment of the New York Trial Term, defendant appeals. Affirmed.

E. Clyde Sherwood, of New York City, for appellant.

Martin T. Manton, of New York City, for respondent.

CHASE, J.

This action is brought by an employé against an employer to recover damages for personal injuries resulting from an explosion. The accident occurred in 1908. The complaint does not allege that notice was served as provided by section 2, ch. 600, of the Laws of 1902 (now section 201, ch. 31, of the Consolidated Laws, known as the ‘Labor Law’). The defendant's liabilityrests upon allege violations of the rules of the common law and of rules prescribed by the commissioner of labor. The commissioner of labor is required to

‘see that every necessary precaution is taken to insure the safety and health of employés employed in the mines and quarries and in the construction of tunnels of the state and shall prescribe rules and regulations therefor.’ Laws 1907, ch. 399, § 120, now sections 119 and 120, ch. 31, of the Consolidated Laws, as amended by Laws 1913C, 145, §§ 10, 11.

In pursuance of said statute the commissioner of labor made rules, among which are the following:

‘5. After blasting no one except the blaster or blasters shall be allowed in the part of the mine where such blast has been fired, until the blaster has made personal examination, and pronounced all safe.’

‘7. The mine superintendent or person designated by him shall examine daily all mine appliances and see that they are in safe condition.’

‘21. All blasting shall be done by one man and his helper designated by the superintendent for that purpose. After blasting, no one else shall be allowed in that part of the mine or quarry until the blaster has made personal examination and pronounced ‘all over.’ If a blast misses fire, no one except the blaster and his helper shall be allowed in that part of the mine or quarry less than three hours thereafter, unless and until the blaster has made a personal examination and pronounced ‘all safe.’ * * *'

The plaintiff was a driller. His work was done with an electric drill. On the day of the accident he was directed, by the foreman of a shaft of the defendant's gypsum mine at Oakfield, to go to another part of the mine in the shaft, from that in which he had been working or had ever worked and there drill holes for use in blasting. The plaintiff asked the foreman what the condition of that room was, and the foreman said ‘all good and safe, but got a little water.’ The plaintiff went to that part of the mine as directed and commenced drilling. Shortly thereafter the foreman came to the place where he was working. The plaintiff's testimony as to what was then said and as to what then occurred is as follows:

‘He came to my room and asked where my lines were and I said, ‘I don't know,’ I said just, ‘I come this afternoon to this room.’ He said, ‘Come here, and I show it.’ I went to him and he showed the lines to me, and after I was through with those lines, he asked me how many holes I had. I said, ‘I got four to left side of that room.’ He said, ‘You turn your machine to the right side and put in four more.’ I said, ‘I see one hole in top.’ He said, ‘That hole was all right,’ and after I was-He said, ‘You get through those four holes you take your drill and put into that hole and measure, and when you get through from measuring it put two holes right close to the pillar.’ And I said, ‘You examine that hole?’ He said ‘Yes.’ I said, ‘There be blasting in that room?’ He said, ‘No.’ Then he went away from me-went into some other place. I was to finish those four holes that he told me; I knew that. I measured that hole and got an explosion.'

He further testified that the foreman told him ‘to find out which direction this hole ran.’ The hole referred to was in the side of the room near a low roof. The holes that the plaintiff was required to drill were to be six or seven feet deep, and the place and direction of some of such holes were necessarily, to some extent, affected by the hole that was there when he entered the room and the depth and direction of such hole. It is also apparent that it was important to determine whether such hole was filled with explosive. Such fact could have been ascertained by reasonable inspection.

[1][2] The common-law duty of an employer toward his employé is to provide a reasonably safe place for him to work. That duty includes the duty of reasonable inspection of the place and of the appliances for the work. The Legislature, by directing the commissioner of labor to see that every necessary precaution is taken to insure the safety and health of employés employed in the mines and quarries and in the construction of tunnels of the state and to prescribe rules and regulations therefor, intended to supplement the common-law rules relating thereto, and thereby further to insure the safety of those employed in such dangerous employments. Statutory directions in regard to machinery and appliances and the manner in which work shall be performed made in the interests of human life and to insure the safety and health of employés are ordinarily compulsory. It is the duty of employers, not only to adopt the rules of the commissioner of labor made pursuant to statute, but to enforce them. If the rules of the commissioner of labor quoted, after written notice by him, are not obeyed, the employer is liable criminally. Penal Laws (Consol. Laws, c. 40), § 1270; Labor Law, § 134. The employer is also subject in case of an injury resulting from their disobedience to the ordinary consequences arising from negligence....