I think the main questions in this case were for the jury. That the evidence warranted the conclusion that the decedent was free from contributory negligence cannot seriously be questioned. The principal question relates to the defendants’ negligence. Their employees in the caisson worked in an octagonal space, divided by bulkheads into eight principal chambers. Each of these chambers was about twenty-four feet in breadth, twelve feet long on the inside, thirty-one feet on the Outside and seven feet high. There were thirty to thirty-five men in the caisson on the day of the accident. Blasting was carried on inside this space. Sometimes the blasts were covered— that is, wood and other objects were piled around the spot to obstruct the flying fragments and deaden their force. But oftener there was no covering, and this was the case upon the day of the accident.
I think it was upon all the facts a question for the jury whether it would not have been a reasonable precaution for the defendants to cover their blasts. The space was not a large one; there were many men in it, and blasts were frequent. Fragments from them could and did rebound from the walls into all parts of the space, though with spent force. In addition, it was often necessary, in the course of the work, to dig the ground from under the caisson, leaving a space between the bulkheads and the river bottom through *576which the missiles might fly. One. rebound of such a missile might,, it would seeni, carry it half way around the caisson. It thus appears that the workmen Were more or less exposed to- danger at' every blast. This danger was certainly enhanced by leaving the blasts uncovered. In view of all these circumstances, and of the simple and inexpensive nature of the precaution, I do not see how it can be said, as matter of law, that the. defendants were not bound to have adopted it. This view is strengthened by the evidence in the record that blasts had been covered in similar work elsewhere, and that sometimes they were covered even ’ in this very caisson. That this was perhaps the first accident here from such a cause was a fact to be taken into consideration by the jury,.but it was not conclusive. . ■ There does not even seem to be distinct, affirmative proof on this head by the defendants. But if there were, it could not be said that the- fact that there was no accident during a period of about' three weeks (the length of time that blasting had been conducted in the caisson) Conclusively proved the appliances to be proper and sufficient.
But it is said (and this view seems the main, if not the sole, basis of the result arrived at by the presiding justice) that, assuming this omission to have, been a negligent one, it had nothing to do with the accident. That, it is said, was caused solely by the negligence of Garroll in setting off the blast prematurely. Carroll’s negligence doubtless contributed to the accident; but was it the sole proximate cause thereof ? Hot unless it can be said, as matter of law, that the stone which killed the deceased would have struck and killed him just the same if the blast had been covered. It is manifestly impossible to say this. He was some twenty-five feet away, and the covering might, and in all probability would, have deflected the course of this and other missiles so that he would have escaped. Hence, so far as we can tell, the accident would'riot have happened but for the concurrence of two things, Carroll’s negligent act and the defendants’ negligent omission. An indisputable rule ..of law requires that the defendants be held liable in such a cáse'. If negligent, they cannot escape liability because the negligence of a servant concurred in causing the accident. (Coppins v. N. Y. C. & H. R. R. R. Co., 122 N. Y. 557; Stringham v. Stewart, 100 id. 516; Ellis v. N. Y., L. E. & W. R. R. Co., 95 id. 546.)
*577The other reasons urged by the defendants are not tenable. It cannot be said, as matter of law, that the deceased assumed the risk of injury from uncovered blasts. He had been at work but two days before he was killed, and at a branch of the work having no connection with the blasting. So far as appears, he had, prior to the blast in question, no knowledge of the details of this work. In fact it does not even appear distinctly that covers were not used during these two days. The proof of knowledge of the precise risk run should be very clear and unequivocal to have the effect claimed, and it is quite insufficient here. The point that the defendants fulfilled their duty by providing material with which to cover the blasts is also answered by the state of the proof, which discloses an issue of fact upon that subject.
I think that the judgment should be reversed and a new trial ordered, costs to abide the event.
Judgment and order affirmed, with costs.