
    Karl Motzing, Appellant, v. Excelsior Brewing Company, Respondent.
    
      Negligence — injury, from boiling pitch being thrown from a kettle while an appliance designed to prevent it toas being used— liability of the master — knowledge of the explosive power chargeable to the master—absence of proof of any previous accident—right of the 'servant to assume that it was safe fot' him to use the appliance.
    
    In an action brought to recover damages for personal injuries, it appeared that the defendant, a brewing company, purchased of reputable manufacturers a pitching machine, one of the essential parts of which was a kettle in which the pitch was boiled over a fire; that it being found that the pitch, when heated, melted first at the bottom and that the hard crust above it so confined the melting pitch as to create an expansive force which would crack the kettle, the defendant’s brewmaster invented, to remedy this difficulty, an appliance which consisted of a pipe two and three-eighths inches in diameter and twenty-one inches long with holes in the bottom, which pipe was placed in the kettle in a vertical position so that the pitch melted at the bottom could find a vent; that to keep the cooling pitch from hardening within the pipe another pipe closed at the bottom was screwed into the outside pipe; that when it was again desired to use the pitching machine, the inside pipe was unscrewed; that pitch would at times accumulate about the threads and become hard, thus rendering it necessary to melt the same before the inner pipe could be removed; that this was done by starting the fire under the kettle from ten to fifteen minutes before attempting to remove the inner pipe; that on the occasion in question, the plaintiff, who was an engineer and who had never had anything to do with the machine, was directed by the defendant’s brewmaster to remove the inner pipe, the fire having already been started; that the tube had become cracked and bent so that it could not be forced into the outer tube far enough for the threads to catch; that while he was attempting to adjust a wrench to the pipe, the expansive force of the melting pitch at the bottom of the kettle blew out the pipe and expelled the hot pitch upon the plaintiff causing him to sustain the inj uries for Which he sought to recover.
    The machine had been used for from six to nine months and no similar accident had ever happened before.
    
      Held, that it was improper to dismiss the plaintiff’s complaint;
    That the fact that no previous accident had happened is not controlling where a situation obviously dangerous is presented;
    That the defendant knew or should have known from its experience with the broken kettles, that the expansive force of melting pitch when confined might form a dangerous explosive;
    That the pipe appliance installed by the defendant in the kettle was obviously dangerous, and that it at all times subjected any person who undertook to unscrew the inner pipe to the danger of being covered with molten pitch; That the evidence would justify a finding that the defendant had failed to exercise reasonable care;
    That in view of the plaintiff’s unfamiliarity with the machine and of his lack of knowledge as to how long the fire had been burning under the kettle, and of the absence of any warning of possible danger, and of his not having undertaken before to remove the pipe, he had the right to assume that it was safe for him to unscrew the inner pipe as directed by the brewmaster.
    Appeal by the plaintiff, Karl Motzing, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of. the county of Kings on the 10th day of June, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 18th day of June, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      H. Aaron [L. N. Wood with him on the brief], for the appellant.
    
      John Vernou Bouvier, Jr. [Frank V. Johnson with him on the brief], for the respondent.
   Miller, J.:

The defendant used in its brewery a pitching machine, purchased of reputable manufacturers, consisting of a. kettle having in it a rotary pump which forced the pitch when heated into the beer kegs. The kettle was placed over a fire box set deep in the floor. It was found that when the .pitch was heated, after it had been allowed to cool, it melted first at the bottom, and the hard crust on top so confined the melting pitch as to create' an expansive force, which would occasionally crack the bottom of the kettle and. allow the pitch to run into the fire. The defendant’s brewmaster evolved a scheme to remedy this; a pipe two and three-eighths inches in diameter and twenty-one inches long, with holes in the bottom, was placed in the kettle in a vertical' position, so that the pitch melting at the bottom could find a vent through the open pipe, but it was necessary to keep the cooling pitch from hardening within this pipe, and another pipe closed at the bottom was fitted in the outside pipe and screwed down by means of threads at the bottom of each pipe fitting into each other. When the pitch was hot the two pipes thus fitted were placed in the kettle as described, and when the machine was to be used again the inside pipe was taken out by means, of a Stilson wrench. The machine had been thus used from six to nine months. Such force was required to unscrew the inner tube that it was occasionally cracked and bent, thereby requiring a new one, and at the time of the accident to the plaintiff the third tube was in use; this had also become cracked and bent so that it could not be forced into the outer tube far enough for the threads to catch, but how long this condition had existed does not appear. The plaintiff was an engineer and had never had anything to do with this machine. On the morning in question after the fire under the kettle had been started, in the absence of the man who usually attended to the removal of the inner pipe, the brewmaster requested the plaintiff to remove the pipe, and while he was attempting to adjust the wrench to the pipe, the expansive force of the melting pitch at the bottom of the kettle blew out the pipe and expelled the hot pitch upon the plaintiff, causing the injuries for which the action is brought. The cooling pitch frequently got into the threads of the two pipes, rendering it necessary to melt the pitch at the bottom before the inside pipe could be removed. The brewmaster testified : What was done on this particular occasion when the accident happened was the same as always had been done before the accident. The fire would have to be lighted and the heat kept up for about 10 or 15 minutes before you could unloosen the inside tube and sufficiently melt the pitch.” It did not appear that a similar accident had happened before.

At the close of the plaintiff’s evidence a nonsuit was granted, the court briefly stating its reasons therefor, which were: That the accident was one not reasonably to have been apprehended; that although the inner tube was bent and cracked, when it was within the outer tube the fact could not be readily discerned whether the threads of the two tubes met and fitted into each other, and that assuming the accident to have resulted from the premature starting of the fire, it was Caused by the negligence of coservants.

In respect to the last reason stated, the learned justice evidently overlooked the fact that it was necessary to start the fire before the pipe could be removed, and that the jury could have found that the fire was started in precisely the same manner as had been customary.

Of course the respondent does not question the rule that the defendant owed the duty to use reasonable care to provide reason-

ably safe tools and appliances and to keep them in a reasonably safe condition, but seeks to sustain the nonsuit upon the ground that there was no evidence which could warrant a jury in finding failure on the part of the defendant to observe either- of those requirements. The fact that no previous accident had happened is entitled to great weight and may frequently be controlling, but it is not controlling where a situation obviously dangerous is presented. The evidence is undisputed, and we must look to it to determine whether reasonable minds could draw from it an inference that in the exercise of reasonable care the defendant should have performed some duty to the plaintiff which it neglected. Obviously the defendant ' knew or should have known from the experience of the broken kettles that the expansion from melting pitch if confined might form a dangerous explosive force. It was to provide against this very thing that the pipe contrivance was made. This was so made that it was necessary to melt the pitch at the bottom before the inner pipe could be taken out and vent furnished, and whether the inner tube was straight or bent, cracked or whole, whether the thread at the bottom could be screwed into the thread on the inside of the outer tube, it would seem to be perfectly obvious that upon its being removed and sudden vent thus furnished to an expansive force, that force might be sufficient" to expel the molten pitch up through the tube and onto whoever happened to be in the way. The fact that for six or nine months prior to the accident it had been possible to get the inside pipe unscrewed before sufficient expansive force collected to cause trouble, was not very good evidence that they would always be able to do this, because it would seem that they were at all times experimenting with the possibility of too great expansion for safety before the removal of the inner tube. I do not think that the fact that the thread of the. inner tube did not fit into the thread of the outer tube so that it was expelled before the plaintiff had unscrewed it is very material, because obviously the force which expelled it would have been sufficient upon its being unscrewed and a'sudden vent thus given to have forced the pitch up onto him with the same result. It would seem to me that it would not require a mechanical genius to have devised some apparatus so constructed that the vent could be furnished before sufficient force to cause an explosion had been created by the melting pitch. I think this machine with the appliance put in by the defendant was obviously dangerous, and that it at all times subjected any person who undertook to unscrew the inner tube to the danger of being covered with molten pitch, and certainly the evidence presented a situation from which a jury could say that the defendant had failed to exercise reasonable care. The plaintiff knew nothing about the operation of this machine, had never undertaken to remove this pipe before, knew nothing about the condition of the melting pitch at the bottom of the kettle or how long the fire had been burning, and, in the absence of any warning, had a right to assume that it was safe for him to do what the foreman directed him to do.

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I recommend that the judgment and order be reversed and a new trial granted, costs to abide the event.

Hirschberg, P. J., Bartlett, Jenks and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  