Fourth Department, May, 1908. [Vol. 126. A superintendent knowing the proximity of the main, does not discharge his master's duty by telling the engineer and cranesman to be careful and bridge the main if necessary. In the superintendent's absence the engineer and cranesman were the master's alter ego. KRUSE and ROBSON, JJ., dissented, with opinion. APPEAL by the defendant, the Hyde-McFarlin Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 26th day of October, 1907, upon the verdict of a jury for $1,500, and also from an order entered in said clerk's office on the 18th day of November, 1907, denying the defendant's motion for a new trial made upon the minutes. The action was commenced on the 19th day of November, 1906, to recover damages because of the death of plaintiff's intestate alleged to have been caused solely through the negligence of the defendant. Clinton B. Gibbs, for the appellant. Walter W. Chamberlain, Eugene M. Bartlett and Arthur W. Decker, for the respondent. MCLENNAN, P. J. : The defendant is a corporation and at the time in question was engaged in excavating a cut for the roadbed of the Pennsylvania railroad in the city of Buffalo, N. Y., and across Seneca street, by means of an eighty-ton steam shovel which traveled on movable tracks and was operated by an engine. The cut was about forty feet wide at the top, thirty-four feet wide at the bottom and ten or eleven feet deep. The cut was to be extended over and across a gas main laid in said street. When the work had progressed to the place where the main was located the pointed teeth of a rack which was under the shovel and attached to it for the purpose of loosening the dirt, came in contact with the gas main, punctured it, a large volume of gas escaped into the fire-box of the engine, which resulted in an explosion and caused the death of plaintiff's intestate, who was a common laborer in defendant's employ. The App. Div.] Fourth Department, May, 1908. tracks upon which the steam shovel was operated were laid in the bottom of the cut and by means of one engine the shovel, which was in front, was crowded into the foot of the bank and, when loaded, was by means of another engine raised up out of the cut and swung to either side and dumped. The engine which raised the bucket and swung the boom was operated by an engineer named McDermott, and the engine which crowded the shovel into the face of the bank was operated by a cranesman named Davis. Some weeks prior to the accident the defendant's superintendent, who had charge of the work, had been informed of the existence of the gas main and generally of its location, but to ascertain its situation definitely he caused to be dug a test hole about three feet wide and ten feet long and deep enough to expose the surface of the pipe. It does not appear that the attention of plaintiff's intestate had been called to this test hole, that he knew the purpose of digging it, or that he knew of the existence or location of the gas main, and it appears that at the time of the accident the hole had been partially refilled by the earth from the sides caving in, and also that there was more or less water in it. So that, at the time of the accident, the gas main could not be seen or its location ascertained by observation. The engineer and cranesman knew the purpose of the test hole and knew that the gas main was at the bottom, but at the time of the accident neither of them knew its distance from the surface for its entire length, or whether or not for the entire width of the excavation it was above or below the level of the bottom of the cut upon which the shovel was being operated and in such situation that it could be passed over without injury. On the day previous to the accident and when the cut had been excavated to within about twenty-five or thirty feet of the gas main the defendant's superintendent came upon the work and had a talk with the engineer and the cranesman, telling them, in substance, that they must be careful in crossing the gas main, that it was attended with danger, and that if they found that it was higher than the level of the cut to back up the apparatus on the track and to make an incline and bridge over the gas main, but, so far as appears, no material was furnished for that purpose nor were any specific instructions given as to how such work or bridging was to be done. The superintendent then left the work and from that time until the Fourth Department, May, 1908. [Vol. 126. accident, which occurred between ten and eleven o'clock on the fol lowing day, the entire management of the shovel was left to the engineer and cranesman. It appears that immediately before the accident the shovel removed the earth from eight to ten feet in length of the pipe without harm, but that when the shovel was attempted to be forced into the bank again it struck the gas main and punctured it as above stated. It also appears that the gas main was not upon a level; that the point at which it was punctured was higher than the part from which the earth had already been removed. It appears that the engineer and cranesman took no precautions to prevent the shovel coming in contact with the gas main; that they did not make measurements to ascertain whether it was above or below the level of the track on which the shovel was being operated; neither did they make any effort to bridge it as directed by the foreman. The action was tried upon the theory that the defendant was guilty of negligence because it had failed to use reasonable care and diligence in providing the plaintiff's intestate with a reasonably safe place in which to work, and counsel for both sides acquiesced in such manner of submission. The learned trial court charged that under all the circumstances it was for the jury to determine whether or not the place was reasonably safe. He charged that if it was, the plaintiff could not recover, but that if it was unsafe to the knowledge of the defendant and plaintiff's intestate was not warned of the danger and that it was unsafe he could recover, provided they found that he was free from contributory negligence. We think the finding of the jury that the place in which the deceased was set to work was unsafe and dangerous was amply justified by the evidence. The presence of the gas main, in and of itself, did not make the place dangerous, but when considered in connection with the work which was being done about it, it is evident that it was highly dangerous. If a case of dynamite had been placed in the bottom of the cut no danger would result from that circumstance alone, but if a steam shovel should be operated over or upon it an explosion might reasonably be expected to result. In this case the fire-box of an engine, operating an eighty-ton steam shovel, was placed in close proximity to a gas main and under such circumstances that it must have been evident to a person exercising App. Div.] Fourth Department, May, 1908. ordinary care and prudence that such main wouid very likely be broken, and that if so an explosion would follow. The defendant owed to the deceased the duty to use reasonable care to make the place in which he was required to work reasonably safe, and such duty cannot be delegated to any servant of any grade so as to exonerate the master from responsibility to a servant who has been injured by its non-performance. (Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y. 368; Finn v. Cassidy, 165 id. 584.) And whether unsafe or not depends as much upon the character of the work being done and the manner of doing it, as upon the character of the place or particular spot where the employee is located. "When * * the master directs the performance of work by his servant at a place which may become dangerous and such danger may be foreseen and guarded against by the exercise of reasonable care, it is the master's duty to exercise such care and adopt such precautions as will protect the servant." (McGovern v. Central Vermont R. R. Co., 123 N. Y. 280.) Applying to the case at bar the principles of law enunciated by these and other decisions which might be cited, it would seem clear that the evidence warranted the finding that the defendant was guilty of negligence. The superintendent knew that plaintiff's intestate was liable to be directed at any moment to work in close proximity to the hidden gas main, and that in the progress of the work his situation would be dangerous in the extreme, and yet, without warning him of such danger, he was sent to the place where he met his death. On the day previous to the accident, and when the shovel had nearly reached the main, the defendant knew, or by the exercise of reasonable diligence might have known, that it was approaching on such a level that unless the elevation of the track was changed the main would be broken, and that probably an explosion would result. He took no means to avert such disaster except to give the directions to the engineer and cranesman referred to. This was not a discharge of the master's duties in the premises to furnish his servant a reasonably safe place in which to work. The engineer and cranesman were the alter ego of the master during the day of and at the time of the accident. They knew, or ought to have known, that to place the shovel over the gas main without ascertaining its location would at once cause a APP. DIV.- VOL. CXXVI. 15 Fourth Department, May, 1908. [Vol. 126. most dangerous place, and that injury would probably result to all engaged in the work. But without making any investigation as to the height of the main as compared with the track upon which the shovel was being operated, they proceeded in such manner as to necessarily make the place where the deceased was directed to work dangerous and unsafe, and without in any manner warning him of such danger. The place was unsafe as to plaintiff's intestate because of a hidden danger of which he had no knowledge, but of which the defendant was fully advised, and in carrying on the work which he was directed to do, wholly oblivious of any danger, he was led or driven to his death. The deceased was in no danger because of the excavation of the cut in and of itself, but his peril arose because of the hidden gas main, located in the track of the shovel, in connection with the work of its operation, about which he was engaged. The case of Citrone v. O'Rourke Engineering Construction Co. (188 N. Y. 339), relied upon by appellant's counsel (and other cases cited), we think is clearly distinguishable from the case at bar. In that case the defendant was held not liable because the construction of the trench, the doing of the work, in and of itself, caused the accident, resulting from performing a detail of the work in which the plaintiff in that case was engaged. He knew that blasting was being carried on, and that by that means the earth or rock which he was to remove was loosened and made ready for him to handle, and the loosening of the material which fell upon him was simply a detail of the work, for the doing of which the master was not liable, although done in a negligent manner by a fellow-servant. In the Citrone case, if the plaintiff had been directed to enter the trench by the master, or by his foreman, his alter ego, however competent, without having been informed or having any knowledge that blasting was being done, and had commenced removing material from directly over an unexploded blast, known so to be by the foreman, we think it clear that such plaintiff would have had the right to insist that the master had not discharged his duty as to him, in that he had not furnished a reasonably safe place in which to work. Suppose a master employs a number of men to take down a building. He sets them all to work in the upper story, directly |