Cullen v. Norton , 1 Silv. Sup. 510 ( 1889 )

Landon, J.

Hussey v. Coger, 20 N. E. Rep. 556, is a case in which the-place where the plaintiff’s intestate worked was made dangerous only because of the negligence of his fellow-workman above him. The hatch fell because a workman who ought to have taken hold of one corner of it neglected to do so. The injury, therefore, resulted primarily from the negligence of fellow-workmen. In the case at bar the explosion may have resulted solely from the-negligence of the defendant’s workmen employed in drilling near the unexploded hole, or from the concussion caused by the drilling irrespective of any" negligence of a workman, or from the sparks flying from the steam-drill. It would be for the jury to say whether the negligence of the workman was the sole cause of the explosion. In Roach v. Architectural Works, 14 N. Y. St. Rep. 583, the injury resulted from the'careless manner in which a shoe under the derrick was placed. The act of placing it was servants’ w-ark, no matter by whom performed. Here the place where the plaintiff’s intestate was put to work was dangerous, not only because the servants higher up on the wall might be careless, but also in spite of their utmost care; and, as the jury might have found the injury was due to the place, and not to the carelessness of the workmen, the case should have been submitted to them. The defendant urges that he cannot safely appeal to the court of appeals. We of course cannot state what the practice of that court is. But as we simply hold that the case ought to have been submitted to the jury, we decide no question of fact, and an appeal to the court of appeals will be unembarrassed by such a question. Reargument denied. All concur.