The appellant contends that there is no evidence establishing its negligence; that the notice of injury was not served within the time required by law to maintain an action under the provisions of the statute, and that good grounds for its non-service were not proven, and also that the damages are grossly excessive.
The learned justice presiding at the trial eliminated from the consideration of the jury tlié safety of the place in which the work was being carried on, the suitableness of the implements being used and the competency .of the employee to whose negligent act,the accident was attributable. He submitted to them the single question bearing upon defendant’s liability, of Avliether it exercised reasonable and ordinary care and diligence to see that the Avork was done in such a Avay'as not needlessly to imperil the lives of fellowAvorkmen, and, at the defendant’s request, charged that unless the foreman “ either directed Cavallo to put the can of dynamite upon the forge, not upon the fire but upon the forge Avliere the fire was, or kneAV that he Avas doing it, or should have known it, that in the *402exercise of due care the plaintiff cannot recover.” He also charged ; “ If the foreman saw this man do a thing that was- clearly negligent, or by the exercise of due care should have seen him do it, then you may consider that in determining whether the defendant was or was not guilty of negligence in this case.”
Ho exceptions to this charge were taken by the defendant. I think the evidence justified the submission of this question to the jury and that there is sufficient shown by the record.to sustain their verdict.
Oavallb, an employee of defendant, was a ■ common laborer, whose work it was to dig with pick and shovel in the excavation of a trench in which water pipes were to be laid. When rock was encountered, and the foreman.by the use of dynamite had blasted and broken it up, it was the duty of Cavallo to go in the ditch and throw out.the broken stone and dirt. He had never had anything to do with dynamite or with the blasting during the time the Work had been in progress or before of after he came from Italy to this country. The plaintiff was. a blacksmith, also in defendant’s employ, whose labor consisted in sharpening the tools used on the work, for which he was. furnished a portable forge, to which was attached a wheel that worked a bellows for increasing the heat of the fire in which the tools were heated, and an anvil placed about four fleet, from the forge on which the tools were sharpened. Cavallo was working in the ditch on the day of the accident ;• the foreman was -above him on the bank.; Cavallo' left his work, came out of -the trench, took a tin or iron pail in which he put some water and several sticks of dynamite, proceedéd to the forge, the plaintiff at the tipie being engaged in work' upon the anvil, and placed the pail over the fire, and using the wheel and bellows proceeded to quicken it when the dynamite' exploded, killing him^ and inflicting serious injuries upon plaintiff.
The foreman was in court, but not sworn as a witness. There was sufficient in the case to warrant the jury, in finding that thy foreman knew, or in the exercise of ordinary care should' have known, what Cavallo was doings It is impossible to believe that-the latter, never having used dynamite and being wholly unfamiliar with- its use, should have left his work in-the. trench and proceeded to-the dangerous task of thawing out dynamite in the'manner he *403did without being directed so to do. If the foreman did not give Cavallo the directions under which he was acting and did not know what he was going- to do, the jury were yet justified in finding that he ought to have known.
The 120 days allowed by the statute to give the notice therein provided expired on the 28th- day of March, 1905-. The plaintiff .was seriously injured; he was taken to the hospital' where he . remained some six months, most of the time in bed, and his testimony is uncontradicted' that the notice was signed and served within ten days after he was able, physically or mentally, to do anything about it. He signed the notice on April 11 and it was served oh April 12, 1905. He alleged in his complaint that he was unable from physical and mental incapacity to give the notice within the 120 days, but gave it within 10 days after the incapacity was removed.
The question of its -being served in time or that the evidence did not sustain the allegation of the complaint in this respect, was not raised on the trial by the defendant in any manner. The question was one of fact for the jury (Forsyth v. City of Oswego, 191 N. Y. 441), and their conclusion should not be disturbed. The verdict is riot excessive, and the judgment and order must be affirmed, with costs.
Present-—Woodward, Hooker, Gaynob, High and Miller, JJ.
Judgment and order unanimously affirmed, with costs.