Andriuszis v. Philadelphia & Reading Coal & Iron Co.

149 A.D. 924, 133 N.Y.S. 1111

Opinion

Judgment and order reversed and new trial granted, costs to abide the event, on the authority of Andriuszis v. Philadelphia & Reading Coal & Iron Co. (143 App. Div. 607). Jenks, P. J., Burr, Woodward and Rich, JJ., concurred. Burr, J., also concurred upon the further grounds (1) that if Shukavage did employ the method of removing the tamping from the first hole, a verdict based upon the finding that after such tamping had been removed and the hole recharged such method would not be equally effective with the other method of drilling a second hole, so far as exploding the charge in the first hole is concerned, is against the weight of the evidence; (3) that defendant is not liable for the negligence of Shukavage, if any, under the statutes of Pennsylvania as construed by the Supreme Court of that State. (D'Jorko v. Berwind- White Coal Mining Co., 231 Penn. St. 164.) Hirschberg, J., dissented.