(dissenting):
Two gangs of workmen employed by the defendants were drilling and digging rock in two trenches for the rapid transit subway in Manhattan. These trenches were approaching each other from the north and from the south respectively, and at the time of the injury to the plaintiff they had so nearly met that there was only a wall of rock one or two feet in thickness between them. The plaintiff was in one of the trenches with several other workmen, when a blast was set off in the other trench whereby the intervening wall was shattered and fell upon the plaintiff, causing him injuries for *72which, he has recovered a verdict, of $4,750, and from the judgment, thereon the defendants appeal.
. The plaintiff’s contention is that the blast was fired without any warning. His counsel said : “ I am going to the jury on the sole-question of warning.”
The defendants contend that adequate warning was given, and if it was not, that the failure was that of a fellow-servant who had charge of that duty.
In its- charge the court said that the only negligence claimed was the failure; to give adequate notice to the plaintiff that a blast was about to be fired, and that any neglect to give adequate notice was, not the negligence of a fellow-servant. The court submitted to the. jury simply the question whether or not adequate notice was given,, charging that, if not given, the defendants were liable, if the failure to give such notice was the cause of the accident.
We have thus a simple and clearly defined question, whether adequate notice was given, irrespective of the question as to whose duty it was to give notice of the firing of the blast. The trial was had upon the theory that such duty rested upon one of the defendants’ servants, but there was evidence tending to show that .no sufficient warning was given by any one. The plaintiff and several of his witnesses who were in a position to hear the warning, if any was given, testified that.none was given, so far as they heard, and others that none was given. It is true that a larger number of witnesses for the defendants testified with great minuteness and particularity that such warning was given in a loud tone and that flags were waved- or put up to prevent the approach of anyone. Upon this question the jury have found for the plaintiff, and I see no such preponderance of evidence as to require us to interfere with their verdict.
We are not cited to any authority in this State upon the precise question raised by the defendants, that the foreman, Carroll, was a fellow-servant of the plaintiff, but there is a well-considered, case in New Jersey (Belleville Stone Co. v. Mooney, 61 N. J. Law, 253), a case very similar to the one at bar, where it was the. duty of a foreman to supervise the preparation of each blast, to light the fuse and fire it,: and to give warning -by a cry of “Fire,” so that .the workmen, in the .quarry might run out of danger. The court held that the *73giving, of warning bore no direct relation to the foreman’s work in preparing and firing the blast, saying: “ If the danger was not foreseen.and proper warning given, the quarry became an unsafe place for the workmen, but it was made reasonably safe if such warning was given. It seems clearly to follow that on him whose duty it was to take care that the place should be kept safe was cast the duty of giving timely warning. We conclude, therefore, that it was part of the defendant’s duty to the plaintiff that proper care should be exercised in giving warning of an expected blast. In selecting the person who was to fire the blast as the person to give the warning, the defendant probably chose the man best able to perform that duty, but as the defendant’s responsibility extended beyond the selection of an agent and included the warning itself, it must answer for negligence in the giving of warning, no matter how fit was the chosen agent.”
The logical force of this opinion impresses me. Assuming that it was the duty of the foreman to give warning, the giving of such warning is in no sense a detail of the work of blasting. It is a separate and distinct duty, and this duty is that of the master and not of a servant, embracing as it does the duty of providing a safe place for the workmen. The safety of the place in the case at bar depended upon the guards and precautions which the master used, and one of these precautions was the adequate warning that a blast, was about to be fired. The foreman, Carroll, ordered the setting off the blast. In all that occurred up to that time he and the plaintiff were fellow-servants, doing the same work in common. But the accident to the plaintiff was not caused by any negligence of Carroll in the preparation and firing of the blast. That work had been completed. There was the additional and separate duty of giving adequate warning resting upon some one. The defendants have failed to show upon whom it devolved, and we are not in a position to say whether it was the duty of the foreman or some one of the workmen, and hence we are unable to say that the neglect was or was not the neglect of a fellow-servant of the plaintiff.
Defendants’ counsel excepted- to the portion of the charge “ that any neglect to give adequate notice is the fault of the master.” The correctness of the charge in that regard might be considered except for the fact that there is no evidence upon which we can predicate *74that it was the duty of the foreman to give warning, and also for the fact that the theory upon which the action was tried was that,, no matter whose duty it was to give notice, no adequate notice was given by any one, and upon this question, as already stated, the jury have found in favor of the plaintiff.
I find no reversible error and think that the judgment should be affirmed.
Judgment and order reversed and new trial granted, costs to abide the event.