This is an action to recover damages for personal injuries sustained by the plaintiff, and alleged to have been caused by the negligence of the defendants. On the trial witnesses were examined on behalf of both the plaintiff and the defendants, and at the close of all the proofs the complaint was dismissed, but for what specific reason does not appear. The motion was made on various grounds, namely: That no negligence was proven on the part of the defendants ; that it had not been shown that the plaintiff was free from contributory negligence; that the accident which happened to the plaintiff was caused by one of the risks of the employment he liad assumed;; that if there, were negligence on the part of any other ■ than the plaintiff himself, it was the negligence of one of his fellow-' servants, and that it was affirmatively shown that there Was no negligence on the part of the defendants. A request was made by the plaintiff to go to the jury upon the question of the personal supervisión of the defendants, upon that of the defendants’ negligence, and on that of the absence of contributory negligence on the part of the plaintiff, and on all the evidence in the case. The trial judge refused to allow the case to go to.the jury, to which the plaintiff excepted, as he did also to the granting of the motion to dismiss the complaint. Those exceptions were directed to be heard in the first instance before the Appellate Division.
In considering the ruling of the court below .dismissing the complaint, we must accept in- the most favorable light to the plaintiff all the evidence bearing upon the controverted issues of fact (Rehberg v. The Mayor, 91 N. Y. 137 ; Galvin v. The Mayor, 112 id. 223 ; Stuber v. McEntee, 142 id. 200; Pratt v. D. H. M. F. Ins. Co., 130 id. 206; Weil v. The Dry Dock etc., R. R. Co., 119 id. 152); and the question involved here is whether or not, so viewing the testimony, there was anything to go to the jury. Stating the case, therefore, in *236its most favorable aspect to the plaintiff upon the proofs, the following facts were made to appear:' The defendants were a firm of contractors and the plaintiff was employed by them as a laborer. They were engaged in making a cut through rock for the passage of trains on the Hew York, Hew Haven and Hartford railroad. That work was done by blasting. The blasts were made during the daytime by workmen who were called the day gang; the debris or fragments of rock thrown out by the. blasts were removed at night by men who were called the night gang. On the afternoon of the 29tli of May, 1894, a blast was set off which dislodged some 400 or 500 tons of rock, which was left to be removed by the night gang. It was shown that it was customary and was considered necessary, after such a blast was had, to have an examination made at the place of the explosion, in order to ascertain whether it would be safe for the night gang to work in the removal of the debris. It appears that the. plaintiff, being one of the night gang, went to work to aid in the removal of this debris ; that it was dark ; that he was working by lamplight, and that while thus engaged a large piece of rock fell from above upon him and • injured him so severely that his foot had to be amputated.. The negligence attributed to the defendants is that no inspection or exami-. nation was had after the explosion to ascertain the effect of that explosion. The claim of the plaintiff is that it was the duty of the "defendants to protect him in the performance ■ of his work as one of the night gang; that that protection was to be afforded by an inspection of the result of the blast to ascertain whether there were any overhanging or loose fragments of rock not fully dislodged by the.explosion and which might fall upon those working in removing the refuse of the. blast. The evidence established facts which showed the existence of the duty referred to. The work of the removal of the debris was dangerous. One of the defendants’ witnesses testified to the necessity of making the inspection referred to, and said it was customary to do it every day, and furthermore testified that he himself made the inspection when the blast went off, and his evidence tended to show that during that inspection he examined the very piece of rock that it was claimed fell upon and injured, the plaintiff. Thus it appears that- the plaintiff was engaged at work in a dangerous place; that it was the duty of the master to inspect the place pr cause it to be inspected by a competent person, and *237that such inspection was a customary and usual thing. The omission to make the inspection, it is claimed, would be negligence. It appeared by the testimony of one of the witnesses for the plaintiff that no inspection was made, and there is a direct issue upon that subject arising upon the evidence. The witness last referred to testified as follows: “ Q. Now, after the blastings occurred or went off, what did they do, if anything, in regard to the examination of the rocks before sending the men to work \ A. The contractors never did anything ; they never sent anybody around. * * * Q. Now, just describe to the court and jury what was done after each blast at this place. The Court: He' may say what was done after this blast. Q. Now, describe it very carefully. The Court: As I understand him, he says that nothing was done. Now, what is the use of going over it ? ”
It is true that it may be said that the testimony of this witness as reported, so far as the particular questions and answers above quoted are concerned, is vague and related to the general neglect of the contractors to make any examination of the rocks before sending night gangs to work; but that is not the proper view of the testimony. The court understood the witness to swear that no examination was made after the particular Mast, the subject of consideration here. The counsel for the jflaintiff asked the witness to describe very carefully what was done, and the court proclaimed that the witness had already answered the question and had said that nothing was done. That, therefore, was the condition of the testimony upon that particular subject, and the plaintiff’s counsel was justified in not pursuing the inquiry any further after the deliberate statement of the court that the witness had testified fully on the subject. We should take that declaration of the court as stating the condition of the proof on that matter, as that proof was before the jury on the trial, for it would be unjust to deprive the plaintiff of the benefit of that testimony after the court had solemnly declared that it was in the case and before the jury. Thus, we have, upon the issue of negligence, conflicting testimony as to what wᣠdone or omitted in the way of inspection, and the court should not have taken the case away from the jury on the question of negligence, unless there were other features of the case which required the granting of the motion for a nonsuit. Contributory negligence was not shown, as matter *238of law, arising from all the facts of the case. The court would not have been justified in dismissing the complaint on that ground.
But it is lirged that, even if there were negligence on the part of the defendants, it was the negligence of a fellow-servant. That question is not a decisive one on this appeal. The plaintiff, according to liis own testimony, was directed to' go to work, at the time at which he was hurt, by Mr. Sillery, one of the defendants. It was an order that came, therefore, from the master himself, and the servant would be justified in believing that, when he ivas ordered by the master to go to work at a place which concededly involved danger, the master had seen to it that all the protection was given to him which was customary and usual and necessary to be given by a master to a servant in doing such work; and, therefore, when the master himself personally directed the plaintiff to go to work, personally took in charge the direction of his servants, that then he, himself, personally had seen or knew that the examination of the overhanging rock had been made. The case is, therefore, unlike Cullen v. Norton (126 N. Y. 1) and Loughlin v. The State of New York, (105 id. 159), which are relied upon by the respondents. The negligence of fellow-servants, who gave directions, was the test in those cases. In Cullen v. Norton (supra) the foreman was a fellow-servant. Loughlin v. The State of New York (supra) turns upon the same fact. Here, the negligence is not in the omission of the foreman of the work to inspect, but it is in the emjfioyer himself setting his'servant to work at this known dangerous place without satisfying himself or knowing that the inspection had been made. "Whether, on a .retrial of the case, negligence of the employer may be shown is a matter now of pure speculation; but, taking the case in its most favorable aspect to the plaintiff, as we are bound to do, we must assume that no inspection was had, and that the defendant Sillery, either with or without knowledge of the omission, set his servant to work ; and it was his duty to know when he gave the order to the plaintiff that the place was safe so far as it could be -made safe by an examination which was to precede t£e beginning of work by the night gang. This servant took only a risk such as was incident to his employment after the master had performed the duty of having a preliminary inspection made of the condition of the rock after the blast, and he 'had a right to rely upon the master having discharged that duty.. •
*239It is unnecessary to consider the question as to whether the foreman at work at this pit is to be regarded in the light of a fellow-servant. If the plaintiff’s testimony is true, the case stands upon the negligence of the master himself. It was he who ordered the plaintiff upon the work, and when he gave that order he took the responsibility connected with the omission to do that particular act • for the safety of the servant, which the servant had the right to rely-upon as having been done before he was put to work. In that aspect of the case, we think it should have gone to the jury on the disputed question of fact as to whether or not the preliminary examination of the rock after the blast had been made.
The exceptions should be sustained and a new trial ordered, with costs to appellant to abide the event.
Van Brunt, P. J., Barrett, Rumsey and O’Brien, JJ., concurred.
Exceptions sustained, new trial ordered, costs to appellant to abide event.