The master clearly had a right to intrust a competent foreman with the details of this work, and the fact that this foreman may have erred in judgment in respect to the danger to be apprehended from a condition known equally to the plaintiff is not evidence of negligence on the part of the defendant, and the case of Henry v. Hudson Manhattan R.R. Co. ( supra) is not an authority for the submission of this case to the jury. The rule of law applying to this case is to be found in King v. Ford ( 121 App. Div. 404) and in the opinion of this court on the former appeal and is clearly to be distinguished from the case relied upon by the respondent in that in the Henry Case ( supra) the general superintendent of the defendant had his attention called to the situation and admitted that it looked dangerous and promised to have the same remedied before nightfall. The plaintiff in that case went to work on the following day without notice of the dangerous condition which had been produced by another class of servants and which danger was known to the defendant's general superintendent, who had promised to remedy the defect.
The fact that the rock fell without any apparent cause shows conclusively that a very slight amount of prying with an iron bar would have brought down the rock in safety, and thus the plaintiff would have had no cause to complain. We are of opinion that upon the question of a safe place to work, the rule recognized and adopted by this court in King v. Ford ( 121 App. Div. 404) is the one which should prevail here, and this makes it certain that the judgment cannot be sustained. The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.