In Cullen v. Norton (126 N. Y. 1) ■ the plaintiff’s intestate was engaged in'quarrying stone. The stone was loosened by blasting. After a blast it was found that the charge in one of the holes had not exploded. The foreman of the defendant examined it and tound the fuse unconsumed, but failed to remove it. He set other workmen to work drilling within two feet, and • directed the plaintiff’s intestate to drill some twenty or thirty feet distant. ' The fuse caught fire. The charge in the hole exploded, causing the death of the plaintiff’s intestate. It was held that the negligence of the foreman was not the negligence of the master and the defendant was not liable. The principle of this case seems further to be held in ■ Miller v. Thomas (15 App. Div. 105). There the plaintiff, an employee of the defendant, was engaged under the immediate direction of a foreman in shoveling coal from a large pile, the surface of which was frozen. A portion of the coal of the frozen surface, which had been undermined during the progress of the work, fell upon and injured the plaintiff. It Was held that the negligence of the foreman was not the negligence of the master, and that the risk was one assumed by the plaintiff. (See, also, Ulrich v. N. Y. C. & H. R. R. R. Co., 25 App. Div. 465.) In the Cullen Case (supra) Justice Peokiiam, in Writing for the court, says: “ Did the defendant discharge this duty of furnishing in the first i/nsta/nce a reasonably safe place for the servant to do his work % The place was a cement quarry, and the work had proceeded so. far that the business had to be conducted by blasting. To blast at all is to encounter some danger, and, hence, in this case, all the danger incident to the working of the quarry under conditions requiring frequent blasts, the workman took the risk of when he accepted employment in the quarry. The danger *395■of accident from the negligence of a fellow-workman is part of the risk assumed.” Further on : “ It is not claimed that the master did not furnish a proper place to work in the first instance; that is, when the deceased was employed, the quarry was as safe as any quarry is where "frequent blasts are being fired off.
“But the manner of the performance of each of the various •details of the work by which, as a whole, it was to be conducted, rested necessarily upon the intelligence and care and fidelity of the .servants to whom these duties were intrusted. It can’t be that every time a blast was exploded and the men come back, the manner of their distribution for work was a duty of the master, and that the order -of a foreman, mistakenly or negligently given, must be regarded as the order of the master in filling a duty to furnish a safe place to work in. It is, as it seems to me, a detail of the working or management of the business, the risks attending which have been assumed •by the party taking employment.”
Assuming, for the argument, that Hannan was the foreman of “the plaintiff’s intestate, they were both engaged in a hazardous undertaking, subject to constantly recurring hazards as the fire progressed. Suppose, for instance, a gang of men were sent to put out •a fire where there were several trees falling. Would it be claimed “that the failure of the foreman to notify the men of the danger caused by the burning of the different trees would be the negligence of the master ? That danger, in my judgment, would be one ¡so far incidental to the progress of the work as to be one of the risks assumed. The failure of the foreman to notify the men of the recurring dangers would be the negligence of a co-employee. The •fact that there was only one tree which, in the progress of the fire became dangerous, cannot alter the rule of law. The negligence, "then, in so placing the plaintiff’s intestate without warning of the •danger, was one of the risks assumed by the plaintiff’s intestate. This case comes, I think, within the authority of the Cullen Case (supra), which would call for a reversal of this judgment.
Judgment and order affirmed, with costs.