The: plaintiff’s intestate, while in the employ of the defendant received injuries which resulted in his death, and his administratrix *193commenced this action to recover the damages sustained thereby. The court submitted the case to the jury who found a verdict for the plaintiff for §10,000. The action is based upon the Employers’ Liability Act (Laws of 1902, chap. 600), which in section 1 provides that where 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 principal 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 * * * administrator of a deceased employee-who has left him surviving a husband, wife or next of kin, shall have ” a cause of action against the employer, Section .3 provides that “An employee by entering upon or continuing in the service of the employer shall be presumed to have assented to the necessary risks of the occupation or employment and no others. The necessary risks ■ of the/ occupation or employment shall, in all cases arising after this act takes effect, be considered as including' those risks, and those only, inherent in the nature of the business which remain after the employer has exercised due care in providing for the safety of his employees, and lias complied 1 with the laws affecting or regulating such business or occupation for the greater safety,of such employees. * * * The fact that the employee continued in the service of the employer in the same place and course of employment after the discovery by such employee, or after he had been informed of, the danger of personal injury therefrom, shall not, as a matter of law, be considered as an assent by such employee to the existence or continuance of - such risks of personal injury therefrom, or as negligence contributing, to such injury. -The question whether the employee understood and assumed the risk of such injury, or was guilty of contributory negligence, by his continuance in the same place and course of employment, with knowledge of the risk of injury shall be one ■ of fact, subject to the usual powers of the court in a proper case to set aside a verdict rendered contrary to the evidence.”
The plaintiff’s intestate was one of a gang of men employed by the defendant in the excavation of a tunnel ninety feet below the *194level of the street. On August 7, 1906, plaintiffs intestate went to work at seven o’clock at night to work until six o’clock in the morning. • It would appear that .'the tunneling at this point was through rock and men' were engaged in drilling holes therein and blasting out with ..explosives. The tunnel was between thirty dive and forty-feet wide, and about twelve feet in height. • A fellow-workman of plaintiffs intestate testified that at regular intervals of thirty or forty feet there were five iron columns placed to support the roof of the tunnel. ' On the top of these columns there were blocks which were jacked up against the roof; that steam drills were attached to these columns;' that there was a man in charge of' this gang of men named Garniel from whom the. members of. the gang-received their orders as to the work they were' to do. Sometime . prior to the accident Garniel, the superintendent, spoke to the witness who was also a roekdriller, directing him to take one of these columns down but he refused to do so as he did not like the appearance of the roof of the tunnel. Subsequently Garniel'gave instructions to some Italians who were- working there ana these Italians. took the central column down; that the rock at this point -looked to the witness as though it might fall at any. time, and a space above this column -of four or five feet was left entirely unsupported after the removal of the column. Subsequently a stone.fell from the roof of the tunnel, at the point -from which this column, had- been removed, upon the plaintiff’s intestate, instantly killing him. The ■ rock fell about- ten or fifteen minutes after the column had been removed. The plaintiff’s intestate was one of-the men who removed the column, and at the time of the accident he was putting ■ in tim- . hers to- block up the roof of the tunnel where the column had been removed.. There was also evidence, that. at the -time the superintendent told the men to remove the- central -column the other four columns had' been' removed; that the roof was supported by the timber on the left of the column near to it, and to the right of the .column there was a -space of seven or eight feet which was left. unblocked and unsupported; that the stone on the roof of the tunnel appeared tq be soft. '
On behalf of the. defendant the foreman testified that the plaintiffs intestate had been at work blocking and wedging the blocks- to support the roof; that the blocking had been done at the .timé the *195column was taken clown right up to the column on the left-hand side; that men had begun blocking on the right-hand side within about twenty inches from the column ; that the plaintiff’s intestate helped the witness to take down the column so that the blocking could be continued; that .before they took the column down the plaintiff’s intestate was asked if the roof was secure, to which he replied that it was; the column was then taken down, and the men,. including the plaintiff’s intestate, commenced to block up the roof with the timbers. The foreman left the defendant’s employ two days after the accident. Before the columns were- taken down the foreman examined the rock and found it kind of soft, but a little further in it was hard and solid; that he thought it was the right thing to remove the column.
The inference from-the testimony is that as the work advanced the iron columns were taken down and carried forward, the timber supports to the roof and sides taking their place. The plaintiff’s intestate, with the other men, was thus engaged in-substituting the timber support for the' support furnished by the iron columns. It does not appear whether or not it was necessary to remove the columns to insert the timber supports, but the. natural inference would be that the supports could not be completed until after the columns were taken away. The evidence is that the timbering had been completed up to the'column on the left-hand side, but there was a space variously estimated at from two to seven feet on the left side of the column in which there was no support to the roof. The - men engaged in the work of substituting the timber for the iron columns took down the column and continued at work inserting the timber to take its place, and while thus engaged the piece of rock fell.
But for the provisions of the Employers’ Liability Act it would be clear that there would be no liability of the defendant for'this accident. It has been lately held that the rule requiring an employer to furnish his workmen with a safe place to work has no application to a case where the men were engaged in creating the place which is unsafe because of the very work that they are doing. (See Citrone v. O'Rourke Engineering Const. Co., 188 N. Y. 339.) In that cáse, as in this; the work, considered as a whole; was the construction of a trench through earth and rock in the city of He.w York. There, *196. as here, there was first, blasting, and after tlie blasting, .the removal of the blasted material. The plaintiff was. one of a gang of workmen who removed the blasted material 'after the blast,, and while thus employed was injured by the falling of some loose, stone and ' earth from the side of the trench, The place where the accident • Occurred was a trench fourteen feet deep aiid six or seven feet • wide, and there was shoring at the side ■ to the height of five or six •feet from the bottom, but no further up. The court left it to the jury . to say whether the trench was made reasonably safe for the work of removing tlie blasted materials, and whether the. trench where the '• plaintiff Was employed was made as safe as a trench where the work of excavating and blasting was carried on ordinarily is made by ordinarily prudent men. The Court of Appeals-.lield that, the duty of a master to furnish his servant with a. reasonably, safe place to work-had no application to that case,, saying: “ Whatever was the danger to which the men were exposed, it was due'to the manner in which - the work, was prosecuted.. . The degree, of safety near the head of the trench was constantly subject to, change as the trench was extended. Under such circumstances the-rule of- law which makes it incumbent s upon an employer to provide or maintain a ,safe place in which his employees are to do their work has no application.” ; The rule thus stated is based upon the fact, that where, the' men are engaged in excavating a trench or tunnel, from the nature of the work to be done,, the place where tile men are required to work is the • head of -. the excavation. The only place that'can be furnished tb the men is the place in the' tunnel at the point of excavation. From the ' necessity of - the case at that place there is danger of the roof or jock caving in, but as it-is the only place; that can be furnished for .- the men engaged in excavating to work nq it is quite impossible for , the master to- furnish his workmen any other place to do their work. As there could be no other place ■ for" the men to work -there could be -no liability oil the part of the defendant for furnishing them .' with this place in which to work, blit it seems tb me that under the Employers’ Liability Act' there is a further question as to whether there was negligence of the employer or his superintendent which caused the injury, and ■ thus in this case the court was required to ' submit/that question to the jury.
The'jury, were, instructed that the defendant owed the decedent a *197duty to prosecute this work without any negligence upon its part and in the exercise of due care and diligence; that to render the defendant liable there must have been some positive fault either of commission or omission on its part; that if the jury found that the injury to the decedent resulted or was caused by neglect of the defendant in failing to use due care in view of all the circumstances, and that the decedent was free from any negligence on his.part contributing to the accident, then the verdict should be for the plaintiff. The defendant then asked the court to charge that “ The plaintiff has failed to establish that the defendant was negligent in furnishing a reasonably safe place to work; reasonably safe appliances to work with and competent fellow servants.”' This was refused, and to that the defendant excepted. It seems to me that the defendant was entitled to' this charge. As we have seen, the question 'of a safe place to work was not presented. The only place at which the men engaged in excavating this tunnel could work was where the excavation was required, and the only place they could work at putting in this timber was where the timber ivas to be put in. The men were-engaged in supporting the roof and sides of the tunnel to continue the excavation. To do the work that they were required to do they had to work at the place where they were working and there was no question of furnishing them with a sáfe place to work. ; The only ground of liability would be under the Employers’ Liability '.Act as to whether the method adopted by the foreman or superintendent in carrying out or conducting the operation • at this particular point was negligent, an entirely different proposition v from the duty imposed upon the master to furnish to liis-employees ' a-.safe and proper place in which to do their work. The main charge was quite indefinite as to the principle upon which the. defendant could be held liable, and the defendant was entitled to have the jury instructed that there was no evidence to show that the defendant did not furnish to his employees a safe and proper place to do the wrork, for that eliminated one element of negligence which was alleged in the complaint as a ground of defendant’s liability. The defendant also asked the court to charge that “ if Baptiste, the alleged foreman, believed that it was safe to remove tihe column supporting the roof, and acting on such belief and in the exercise of ordinary care and prudence caused the same to be *198removed,, the - defendant is entitled to a verdict,” ' 1 think' the defendant was,entitled to this charge; ■ Baptiste liad sworn that- he examined this roof with a crowbar before he removed tlie column : 1 5 that he found the roof soft at the surface but further in solid; that lie believed it was entirely safe to remove the column and that he, had consulted plaintiff’s intestate, who, it. would appear, lrngw as ihuch about .the situation as the foreman, an.d plaintiff’s intestate had said it was safe; that acting on what was his judgment, reinforced by the. judgment of plaintiff’s intestate, the foremamgave the orders and the plaintiff’s intestate and the other workmen removed the column, the plaintiff’s intestate thén resuming work in inserting, timbers to block up the roof and sides of the tunnel. Now, if after this examination the foreman honestly believed that it was safe to remove the column and acting on such belief it was the exercise of ordinary care and prudence to remove the -column he was not negligent. Negligence is acting as aman of ordinary care and prudence t would not act under the circumstances, and if the act complained of was done in the honest belief that it was a safe and proper thing to do, and in acting upon that belief he acted with ordinary care and prudence there is no negligence. I also think that the dam-v ' ® ages are excessive, but as there must be a new trial it is not necessary to consider that question. '.
The judgment and order- should, therefore, be reversed and a new-trial ordered^ with costs to appellant to abide event.
' McLaughlin, CLÁBKEand Scott, JJ., concurred; Laughlín, J., concurred in.result. . ■
Judgment and order reversed, new trial ordered, costs' to appellant, to abide event.