
    Theresa Hoehn, as Administratrix, etc., of Anton Hoehn, Deceased, Appellant, v. Fred C. M. Lautz, Respondent.
    
      Employer's Liability Act — notice of injury to the employer — injury to an employee using an excessive amount of steam which burst a drum which he was engaged in cleaning—instruction by the master as to a dangerous element where the servant is familiar with its use.
    
    Section 2 of the Employers’ Liability Act (Laws of 1903, chap. 600) provides: “No action for recovery of compensation for injury or death under this act shall he maintained unless notice of the time, place and cause of the in j ury is given to the employer within one hundred and twenty days * * * ' after the occurrence of the accident causing the injury or death. * * * If from physical or mental incapacity, it is impossible for the person injured to give . notice within the time provided in said section, he may give the same within ten days after such incapacity is removed. In case of his death .without having given such notice, his executor or administrator may give such notice within sixty days after his appointment.”
    
      Held, that, in the event of the death of an employee through the alleged negligence of his employer, a notice" given pursuant to the statute one hundred and seven days after the accident, and ninety-seven days after the appointment of an administratrix of the estate of the employee, was timely.
    
    In an action brought against an employer under the Employers’ Liability Act to recover damages resulting from the death of an employee, it appeared that the plaintiff’s intestate had, for a period of five or six years, been engaged in cleaning drums at the defendant’s factory; that., in the process of cleansing, the drums, partially filled with cold water, were placed upon a rack; that a steam pipe three-quarters of an inch in diameter was then inserted into a bung, hole of the drum, which was two inches1 in diameter, and steam injected into the drum; that the sole purpose of the steam was to heat the water, and that when the water was sufficiently heated the steam was turned off and the pipe removed from the drum; that the drum was then rotated from side to side and turned so that the water would run out of the bung hole; that while the intestate was engaged in cleansing a drum one end of it was blown off by reason of an excessive pressure of steam and the intestate was killed. The intestate had entire control of the amount of steam which entered the drum.
    
      Held, that the plaintiff was properly nonsuited;.
    That the only permissible inference which could be drawn by the j ury was that the accident resulted from, the carelessness of the intestate in allowing an excessive amount of steam to enter the drum, and that he, and not the defendant, was responsible for the accident;
    That the plaintiff could not successfully contend that steam was a dangerous element, and that the defendant was guilty of negligence in not instructing the intestate as to the dangers to be apprehended from its use, as the intestate was not ignorant of the use of steam for the purpose for which he was using it at the time of the accident.
    Appeal by the plaintiff, Theresa Hoehn, as administratrix, etc., of Anton Hoehn, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 20th day of November, 1903, upon a nonsuit granted by the court after a trial at the Erie Trial Term, and also from an order entered in said clerk’s office on the 18th day of November, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Hamilton Ward, Jr., for the appellant.
    
      W. H. Love and James L. Quaolcenbush, for the respondent.
    
      
       See Randall v. Holbrook C. & D. Cont. Co. (95 App. Div. 336).
    
   Williams, J.:

The judgment and order should be affirmed, with costs.

The action was brought under the Employers’ Liability Act (Laws of 1902, chap. 600) to recover damages for the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant. The accident causing the death occurred January 27, 1903. The administratrix was appointed February 6, 1903. The notice, under section 2 of the Employers’ Liability Act, was given May 14, 1903, which was 107 days after the death, and 97 days after the appointment of the administratrix. Section 2, above referred to, provides:

“ § 2. No action for recovery of compensation for injury or death under this act shall be maintained unless notice of the time, place and cause of the injury is given to the employer within one hundred and twenty days * * * after the occurrence of the accident causing the injury or death. * * - . If from physical or mental incapacity, it is impossible for the person injured to give notice within the time provided in said, section, lie may give the same within ten days after such incapacity is removed. In case of his death without having -given such notice, his executor or administrator may give such notice within áixty days after his appointment.” The notice in this case was served within Í20 days after the accident, but not within 60 days after the appointment of the administratrix. Was it served in due time so as to give the plaintiff the benefit of the provisions of the act? We think it was. It seems to us the real intention of. the statute was to give 120 days in all cases to serve the notice, and to give time beyond that in cases ' of incompetency or death, if additional time was necessary. Ten days after the incapacity was ¡removed or 60 days after, the appointment of the administrator., We do not think the intention in either case-was to shorten the 120 days in which the notice might be given. We see no rfeason to hold so strict a rule against a -plaintiff in an action under the statute.: The question seems not to have been passed upon by .the courts. The nonsuit cannot, therefore, .he sustained upon the ground that no sufficient notice was given under the act in .question. The plaintiff was entitled to such' benefits as were provided under the statute, hut in order to maintain the action it was necessary for her to give evidence tending to show negligence on the part of the defendant and the absence of contributory negligence on the part of her intestate under the provisions of the act in question.

Section 1 of the act provides: “ Where * * * personal injury is caused to an employee, who is himself in the exercise of due care and diligence: * * *

T. By reason Of any defect in the condition of the ways, works or machinery connected with or used in the business of the employer; * "" *

“ 2. By reason of the negligence of any person in the service of the employer (being or acting as superintendent, &c.); the employee, or in case the injury results in death, the executor or administrator of a deceased employee * * * shall have the same right of compensation and remedies against. the employer as if the employee had not been an employee of nor in the service of the employer nor engaged, in his work.”

It was claimed by the plaintiff that the death of her intestate resulted from the negligence of the defendant or his employees^ for whose negligence he was responsible with reference to defects in the condition of his ways, works and machinery, and their failure to instruct the intestate as to the dangers to be apprehended from the use of the appliances which resulted in the accident and death. The facts appearing from the record are briefly as follows: The defendant’s business was, in part, the manufacture and sale of commercial glycerine. This glycerine was put in iron tanks or drums for shipment, each capable of holding about 1,100 pounds. The tanks or drums were originally used for chemically pure glycerine manufactured and sold by others. After the tanks or drums had been once used for chemically pure glycerine they were no longer fit for that use, but were fit for commercial glycerine, provided they were properly cleansed. The defendant purchased these drums from the dealers in chemically pure glycerine, and, before filling them with his own glycerine, caused them to be cleansed, and the plaintiff’s intestate was employed to do this work. He had been engaged in doing this work for five or six years before his death. He had the entire charge of the drums from the time they were received at the defendant’s factory until the cleansing was done. The manner of cleansing and the means used were as follows: They were taken to defendant’s cellar and put upon a rack, which was on rollers, so that the drums might be easily rotated from side to side. A piece of ordinary hose was connected with the city water system and inserted in the bung of the drum, and the drum filled half full of water in this way. The bung hole was two inches in diameter. Through this hole was inserted a steam pipe three-quarters of an inch in diameter externally, and the steam turned into the water for the purpose of heating it and making, the cleansing process easier. The steam was taken from a boiler near by, and was turned into the pipe inserted in the drum by means of a valve or cock. When the water was sufficiently heated the steam was turned off, the pipe removed from the drum; the drum was rotated from side to side, and then turned so the water would run out of the bung hole upon the cellar bottom, and this process had sometimes to be repeated in order to properly cleanse the drum. While the intestate was engaged in cleansing one of these drums and the steam was turned into the same, one end of the drum was blown off, and the hot water and steam escaped, and the accident resulted in his death a few hours later. Ho one saw the accident, and the immediate cause thereof was a matter of inference from such facts as were given in evidence upon the trial. The steam concededly was the power that caused the blowing off of the drumhead, but precisely how this result came about, when nothing of the kind had occurred before during all the years drums had been cleansed by this process, was a matter of more or less uncer7 tainty. The intestate had control of the steam and could turn on as much or as little as he saw fit. Apparently he turned on an excessive amount on the occasion in question, and that caused the accident. There was no defect in the steam pipe or in the drum except that there was some little rusting at the rivet holes where the head of the drum was fastened in, but there was. an iron hoop covering these rivet holes, and this defect was not observable before the accident unless the hoop was removed for thei purposes of inspection. This, however, would not cause any trouble unless considerable pressure of steam was put upon the drum, and no such pressure was necessary in the proper application of the steam for heating the water. The drumheads were not expected to resist any steam pressure. The steam was not to aid in the cleansing of the drum. Hot water and not steam was to be used for cleansing purposes. We think, therefore, it could not be found by the jury that there was any defect in the appliance used which caused the accident. It was the result of the improper and careless usé of the steam, allowing an excessive amount to go into the drum. The intestate was responsible for this himself. There was no neglect by the defendant in this respect. The intestate was familiar with the steam and its use. He knew how to allow much or little to go into the drum. He had been engaged in this same work for five or six years, and had never before failed to use the steam properly or safely. He made a mistake this time as the most careful persons will sometimes do. There is too much refinement in the claim made in behalf of the plaintiff that steam was a dangerous element, and that the intestate was ignorant as to its use and the dangers to be apprehended therefrom, and that the defendant was guilty of negligence in not instructing him. He was not ignorant of the use of steam as he was using it and had been using it for this cleansing purpose for five or six years. He knew how to use it, and if he had used the knowledge he possessed, and had not been careless on this occasion, no accident or injury to him would have resulted. We think the only permissible inference that could be drawn by the jury as to the cause of the accident was that it resulted from the carelessness of the intestate in using the steam and that the defendant was in no way responsible for the accident.

Upon these grounds the nonsuit was properly granted, and should be upheld.

The judgment and order should, therefore, be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  