The death of plaintiff’s intestate was caused by the negligent act of Martin in setting off the blast. Nevertheless, the judgment is about to be affirmed upon the theory that inasmuch as Martin was a superintendent or foreman of -the workmen who "drilled the holes into which the dynamite that exploded was put, the case is brought within the provisions of chapter 600 of the Laws of 1902, known us the Employers’ Liability Act, whichmakes the defendant liable. This act provides, among other things, that “ where, after this act takes ■ effect, personal injury is caused to an employee, who is himself in the exercise of due care and diligence at the time * * * by reason of the negligence of any person in the service of the employer entrusted with and exercising superintendence, whose sole or prin*824cipal duty is that of superintendence, or:'in the absence of such superintendent,, of any .person acting as superintendent, with the ■ authority .or consent, ,of . such,employer,, .the 'employee, ,or in case, the. injury results in.death,,the.executor or administrator of a deceased . employee who.has left, him surviving,a husband, wife or next of kin, - shall have the same right .of compensation and remedies against the employer as if the employee had not been., an -employee, of nor in the service of the employer nor engaged in.his work.” .
There is absolutely no. evidence to support the conclusion that : when Martin, fired the. blast,. he .was doing, anything which the ; defendant had. authorized, consented or permitted him to do, or over which lie exercised, any act of superintendence whatever, . He had - nothing to do with the /blasting operation.. . His duties related solely : -to;drilling holes in the rock and, after, dynamite, had .been inserted ■ 'therein and, exploded by McBride, to remove the debris. He could . not handle.the .dynamite, insert it in the holes, or explode it. " The only person -who was . authorized or .permitted, by defendant to,do this work was McBride,, who alone had the necessary permit to- do • it. Martin was only foreman, of the, men, who did the .drilling ,and removed the rock, after the dynamite, had been fired. .This is .the only act of superintendence, with which , he had been intrusted by -defendant, To hold,-under, such circumstances, that .the defendant is liable for Martin’s acts, because he was at the time “ exercising superintendence” or “acting, as superintendent with the authority or consent” of defendant is to extend the Employers’Liability Act way beyond what the words warrant,. or the Legislature, as it - seems to me, intended, , , ,
I, therefore, am unable to concur ,in the opinion of Mr. Justice Patterson and vote to reverse, the judgment, and. order a new trial.
Judgment and order affirmed, with costs. Order filed.