(dissenting):
I dissent. The action is for negligence. The plaintiff has entered a judgment for damages upon the verdict of the jury. The defendant as sub-contractor of the contractor with the board of rapid transit commissioners for the construction of the subways under the East river, was excavating the tunnel through the rock bed of that river. The work was done night and day by “ shifts” of workmen. The intestate of the plaintiff was an inspector appointed by the said board to ascertain and to report to his superiors at the end of each shift the progress of the work and to measure the amount of excavation. This excavation was made'by drilling and blasting out the rock, one-half of the heading at a time, above and below alternately. In the afternoon of September 30, 1906, with the usual method employed by the defendant, certain holes had been drilled in the heading. These holes, about ten feet deep, were in the lower half of the face, in two rows six feet apart of five holes each, converging until they almost met at their ends. They were termed “ cut holes.” On each side of these two rows was a row of holes known as “ rib holes ” or “ helpers,” par*677allel to the axis of the tunnel. Outside of these “rib holes” there were two rows of five holes each, known as “ side rounds.” The holes were about two and one-lialf to three inches in diameter. Dynamite cartridges had been placed in the holes. Imbedded in the dynamite were exploders, to which were attached wires connected together in chain that was connected to a firing wire attached to an electric switch. It was not intended to explode all of these holes at once, and no connection for explosive purposes had been made with the “ rib holes ” or the “ side rounds.” The cartridges in the “ cut holes ” were discharged before the workmen went to supper. When they returned, about eight p. m., an examination showed that all of the “ cut holes ” had not been blown out entirely, but that the “ butts ” of the “ cut holes ” remained. These butts were reloaded and the charges were again fired. The wires of the cartridges in the “side rounds” and the “ rib holes” still remained unconnected with the exploding mechanism. At this time the plaintiff’s intestate was in the tunnel waiting to make inspection. He was an intelligent man, who had taken his degree as a civil engineer. After various employments, he passed through civil service into the service of the city, and had been engaged for a year or more in this work. His leisure hours were devoted to electrical work and scientific study. He must have understood well the character and the inherent danger of excavation by high explosives. After the firing of these “ butts,” the defendant’s foreman waited for a period described as “ a few minutes,” or “ four or five minutes,” and then called to certain of his own workmen, “Itis all over, boys; go in and blow out the smoke.” These workmen obeyed, and the plaintiff’s intestate left his place to go with them. He had proceeded about thirty-five feet when a second explosion occurred, and he was fatally injured by the flying rock.
I think that the verdict, which rests upon the negligence of the defendant, should not stand. Undoubtedly the plaintiff’s intestate had the right as an inspector to be in the tunnel at all times when his duties of inspection required him to be there (Morris v. Brown, 111 N. Y. 318), and .indeed this was expressly provided in the contract. But at the time of the explosion he was in a place of safety. Had he remained there up to the time that the place where he went admitted of inspection, he would have been unhurt. He was *678injured because he chose to leave his place of safety to go forward into a place where lie encountered the passing peril of the second explosion, at a time when it was utterly impossible even to begin his work. The first explosion produced a dense volume of smoke and gas so that the place was so black that it was impossible for one to see anything. Ellegood, one of the workmen who went in, says that he judged that the plaintiff’s intestate was opposite to him by the sound of his voice only:— that he could not see him for the dense smoke. The workmen who went in carried candles and even then could hardly see one another. These workmen were sent in to clear out the place by the application of compressed air. They had not cleared away the smoke and gas and fumes when the second explosion occurred. There is no contention that the place was even partially free so as to permit the intestate to begin his work when the second explosion came. There was an invitation to the intestate to go to any place in this tunnel wherever his duties required him to make an inspection and whenever an inspection could be made. And consequently there was the obligation of the defendant to him to exercise due care to keep such place at such times safe for the purposes of the inspection. But that invitation did not extend to places where the defendant could not suppose that in the course of his duty the inspector would go. (Flanagan v. Atlantic Asphalt Co., 37 App. Div. 476; Cowen v. Kirby, 180 Mass. 504; Pierce v. Whitcomb, 48 Vt. 127; Castoriano v. Miller, 15 Misc. Rep. 254.) The question in such a case is: “Could the mischief have been reasonably foreseen ? ” (Hart v. Grennell, 122 N. Y. 375.) Could the defendant reasonably foresee that an inspector in the attempted discharge of his duties of estimate and mensuration would go into a place filled for a time with the fumes and gases of a recent explosion and of such ebon darkness that workmen who went with him for the sole purpose of clearing it must carry candles, and even then failed to distinguish one another although near at hand ? There is not the slightest attempt to prove that at the time of the second explosion the plaintiff met his injuries in the attempted discharge of his duty.
But it is contended that the defendant may be held liable because of the utterance of its foreman, “ It is all over, hays, go in and blow out the smoke,” on the theory of invitation. This was addressed to these workmen of the defendant who made up the “ compressed air *679gang.” First four were sent in and then another four to relieve them, because the place at that time was “ very bad, choke you up and gassy.” It was the business of these men to go in to clear away the place by the application of compressed air through a hose. This utterance could not be construed by the plaintiff’s intestate as any representation that the place was in a proper condition for him to go into, but to the contrary, for the reason that it incidentally informed him that the place was in the usual condition that followed such explosion. It was, of course, no invitation to any one outside of those workmen of the defendant whose specific duty it was to employ the compressed air machinery in order to make the place inhabitable, so to speak. All this must have been understood by the • intestate. And he, not a servant of the master, upon hearing an assurance and order specifically" addressed by the master to his servants for their direction alone in their work, of which the character and purpose must have been understood by him, had no right to assume that he was thereby invited to go with them for his different work which then could not be done.
I think that the learned trial court was right in refusing to apply the doctrine of res ipso loquitur to this case. (Cosulich v. S. O. (Co., 122 N. Y. 118.) And I do not find in this record proof sufficient to sustain a verdict that the defendant was negligent in the method or manner of the work. I think that the judgment should be reversed and a new trial should be granted, costs to abide the event.
Judgment and order affirmed, with costs.