Riggs v. New York Tunnel Co.

• Decision Date: 09 May 1911
• Citation: 95 N.E. 701,202 N.Y. 129
• Parties: RIGGS v. NEW YORK TUNNEL CO.
• Court: New York Court of Appeals Court of Appeals

202 N.Y. 129

95 N.E. 701

RIGGS

v.NEW YORK TUNNEL CO.

Court of Appeals of New York.

May 9, 1911.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Mary Hatch Riggs, as administratrix of Clarence B. Riggs, deceased, against the New York Tunnel Company. From a judgment of the Appellate Division (134 App. Div. 672,119 N. Y. Supp. 548), affirming a judgment for plaintiff, defendant appeals. Reversed, and new trial granted.

Franklin Nevius, for appellant.

Don R. Almy, for respondent.

WILLARD BARTLETT, J.

This is an action to recover damages for negligently causing the death of the plaintiff's intestate, who was killed in the subway under the East River, while it was in process of construction, by the unexpected explosion of a charge of dynamite in the course of the blasting necessary in doing the work which was being carried on by the defendant. The plaintiff's intestate was an inspector employed by the city of New York, who was charged with the duty of reporting the progress of the work in the tunnel at the end of each shift of workmen, and who also at the end of each month measured the entire quantity of work done during that month. There is no doubt that he was lawfully in the tunnel at the time of the fatal explosion. Whether he was properly in the place where he was when killed is a question which it is not necessary to decide. However that may be, we concur with the dissenting member of the Appellate Division in the opinion that the record does not contain proof sufficient to sustain a verdict that the defendant was negligent in its method or manner of doing the work.

The defendant's agents and servants had fired a blast, which gave out a report that indicated the complete explosion of all the dynamite cartridges which had been inserted in the heading of the tunnel. They then disconnected the electric firing apparatus, and the defendant's foreman in charge of the blasting called out to his own workmen: ‘It's all over, boys; go in and blow out the smoke.’ That portion of the tunnel into which they were thus directed to go was filled with a dense volume of smoke and gas, so that, although the workmen carried candles, they could hardly see one another. The plaintiff's intestate advanced toward the heading with the defendant's employés, who were carrying forward a hose with which to blow out the smoke and gas, when a second explosion occurred, by which he and several others were fatally injured.

We can discover nothing in the evidence which points to any negligence on the part of the defendant toward the plaintiff's intestate. It is argued that the defendant's foreman was negligent in representing to the ‘boys' that the explosion was ‘all over.’ This representation, however, was not made to the unfortunate inspector. It was expressly addressed only to the employés of the defendant, and did not...