
    Adolphe Clement, App’lt, v. Rankin Knitting Company, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 20, 1888.)
    
    Master and servant—Master must furnish servant with safe implements AND PLACE FOR WORK —TO RENDER MASTER LIABLE FOR INJURIES ALLEGED TO HAVE BEEN RECEIVED THROUGH THE MASTER’S NEGLECT OF SUCH DUTY, SUCH NEGLECT MUST BE PROVEN.
    A master is bound to furnish his servant safe implements and a safe place to work in The mere fact of an injury having been received by a servant, which may have been caused by the master’s neglect of this duty, is not sufficient to fasten upon the latter," liability therefor.
    Appeal from a judgment of nonsuit, granted at the ■ Albany circuit. The facts are sufficiently stated in the - opinion.
    
      J, F. Crawford, for app’lt; N. C. Moah, for resp’t.
   Leanred, P. J.

The decedent, a boy of about eighteen, was employed by defendants in their mill. In that mill is a card room about 70x70, and at the end of it a picker room about 50x60. In the picker room are two loppers to knock the seeds, etc., out of the cotton, and two pickers, or, more accurately, mixing pickers. In this picker room there is what is, in some instances, called a blow room and in some a picker house. It is an enclosure about twenty feet long, twelve high and by twelve wide on one side and eight - on the other, cased in sheet iron.

The material of cotton and other substances is mixed on the floor in different layers and formed into what is called a mixed batch. It is then placed by a man upon the pickers and, as they are set in motion, the material is carried in to the picker house or blow room. It seems to be necessary that some one should go occasionally into this blow room to remove the accumulation of material from the front of the picker. There was a door to the blow room. Sometimes a man attending one of the pickers would go in, stopping that picker, meantime. In that case he would not. shut the door. Generally, however, another person would be called to go in. Then the door would be shut and held by a button till he was ready to come out. The button was about two and a half inches long, fastened with a screw; was loosely held and would be pushed off by a blow of the hand from the inside. The deceased had been in nearly every day for six weeks.

On the day of the accident one of the men at a picker called the deceased to go into the blow room for the purpose above described. The deceased went in and the door was buttoned. In ten or fifteen seconds afterwards this man saw flames coming from the blow room through a screen over his picker. He went to the door of the blow room and opened it. The room was full of flames and the flames drove him back. He called to deceased but received no answer. He saw-nothing more until he saw his brother bringing the deceased out from the room some ten seconds afterwards. The deceased died from the effects of this burning.

There is no evidence as to the cause of the fire. There is no evidence in what part of the blow room deceased was found." There is .no evidence of any attempt on the part of deceased to open the door. Indeed, the sudden flashing into flames of the loose and combustible material floating in the room probably prevented any escape from the fatal effect of the fire. Flames must have instantly surrounded the deceased and have been inhaled.

It is claimed by plaintiff that probably some nail or other hard substances striking against the revolving teeth of the picker produced a spark and thus caused the fire. But this is only conjectural. The material, before going into the picker, passed "through two other machines, which were supposed to take out all foreign material.

It may be conjectured that some one (even the deceased) had dropped a match in the blow room, on which he trod.

It seems to us that in the absence of all proof of the cause of the fire, we cannot say that the defendants might be liable.

True the master is bound to furnish safe implements and' a safe place to work in. But it is not in proof that this blow room was not a safe place. The mere fact that on this occasion its contents took fire does not show that it was unsafe.

One witness testifies to a fire in Catskill which occurred in a rag picker, not a mixing picker, and was after this accident. Also of one in Canada, in a mixing picker, where "the material had not previously passed through any machine for the process of cleaning, and had only been washed. There is no other proof that there was any danger in this -kind of picker, or that the room wás unsafe.

Furthermore the deceased knew the premises, and the ¡situation. As above stated he had been in the blow room, ¡according to one witness, as often as once a day for the six weeks he had been at the mill. He had worked at similar mills for several years. If this room was dangerous, he had had opportunity to know its danger. If, on the other hand, no such accident had happened before, then the defendants had no more reason to think the place unsafe than he had. For the room was of the usual construction, ánd there was nothing shown to be imperfect in the machine.

The plaintiff urges that the door should have been fastened by a latch instead of a button, so that it might be opened from the inside. But the evidence shows that the button was so loose that it might have been pushed off by a blow from the inside. And further there is no evidence that the deceased tried, but was unable, to get out. He must have been enveloped in flames and fatally burned at once.

We do not think it necessary to cite authorities.' The general principles are very familiar which govern this class ,of cases. The only difficulty is in determining the construction to be given to the facts of each case as it is presented. On this the sound judgment of courts may sometimes vary. • One court may see a small amount of ¡proof, but enough for a jury, where another court sees none.

- After a careful consideration of the testimony in the case we think the judgment should be affirmed, with costs.

Landon, J., concurs.  