Mullins v. Bradley Contracting Co. , 150 N.Y.S. 633 ( 1914 )

GUY, J.

[1] The action is for personal injuries.' Tbs complaint alleges due service of notice under the Employers’ Liability Act, which due service is not denied in the answer. Plaintiff did not introduce the notice in evidence, and at the close of plaintiff’s case the defendant moved to dismiss on this ground. The motion was properly denied.

[2, 3] The evidence, however, entirely fails to prove négligence on the part of the defendant. It is clearly established that the defendant and its licensed blasting foreman, Connelly, had installed a regular system of signals whereby Connelly would shout up from below to Galligan at the top of the shaft that all was ready below, and Galligan, after clearing the street of people, would shout down to Connelly, “All right, let it go!” after which Connelly would give a signal to the electrician at the switch to fire the blast. When the blast which injured the plaintiff was fired, both Connelly and the plaintiff were busy connecting wires, and Connelly had given no signal to Galligan that he was ready. Either Galligan or some one else unknown shouted down the shaft, “All right, let it go!” but no signal was given to. the electrician to fire, either by Connelly or by any one down in the tunnel. That is quite certain, since both Mullins and Connelly, the only persons in the tunnel except the electrician, were within the danger zone and were injured. The signal from above only indicated that the street was clear, and was not a signal to the electrician, who was only to fire on signal from Connelly below. It was not proved that the electrician fired the blast; but, assuming that the facts were strong enough to raise an inference that he did, his action was unauthorized by Connelly, the only man upon whose direction he had authority to act, and was an act of negligence on the part of a fellow servant on a detail of the work, for which the defendant would not be liable.

There being no proof of negligence on the part of the defendant or its foreman, the motion of the defendant’s attorney, at the close of .the entire case, to dismiss the complaint should have been granted.

The judgment must therefore be reversed, with costs, and the complaint dismissed, with costs. All concur.