
    John Scanlan, Respondent, v. Emanuel S. Kahn and Others, Appellants.
    
      Jüeglijence — explosion resulting from the use by a servant of a die with a very Slight convex surface — knowledge must be shown, on the part of the master,■ that such would be the effect of its use.
    
    An employer is hot liable to an employee for injuries sustained by thp latter in consequence of an explosion resulting from the convexity of a die which was. placed in position on a wire-making machine by an experienced employee, where it appears that the degree of convexity was so slight that it could only he detected by the application of a straightedge, and there is no evidence-that it was known to the employer or to the trade generally that dies cf such extremely slight convexity were capable of causing explosions. ;
    Appeal by the defendants, Emanuel S. Kahn and others, from a judgment of the Supreme Court in favor of the plaintiff,; entered in the office of the clerk of the county of Kings' on the 14th day of March, 1898, upon the verdict of a jury, and also fromhn order .entered in said clerk’s office on the 11th day of March, 1898, denying tlie defendants’ motion for a new trial.
    
      L. Sidney Carrere, for the appellants.
    
      Charles J. Patterson, for the respondent.
   Willard Bartlett, J.:

The accident which befell the plaintiff in this case was of a most extraordinary character. He was at work at a machine which was being operated for the manufacture, of lead wire, when an explosion occurred which forced more than eleven feet of lead wire-, into his arm at the wrist and upward under the skin into a coil just below the elbow. He attributed the explosion and consequent injury to the negligence of his employers in furnishing the machine with a convex metal die through which the lead was forced, instead of a die with a concave surface, and a jury has awarded him -damages, against the appellants in the sum of $4,000.

The master must provide for the safety of his servant, as far as can reasonably be expected under the circumstances; but he is not ■ obliged to take more care of his servant than he would be expected as a prudent man to take of himself. * * * The measure of care which a master must take to avoid responsibility for injury to his servant is that which a person of ordinary prudence and caution, would use, if his own interests were to, be affected and the whole risk were his own.” (Berns v. Gaston Coal Co., 27 W. Va. 285, 300.)

The standard which the law has set up whereby to determine whether due care has been exercised by the master to furnish safe and suitable machinery and appliances for the use of the servant is the conduct of a man of ordinary prudence competent and qualified to carry on the business he has undertaken, acquainted with its own dangers, and no less observant and diligent to protect his employees against those dangers than he would be. to protect himself.

Applying this rule to the facts of the case at bar, I am unable to discover any sufficient basis for imputing negligence to the employers of the plaintiff.

The die to which the explosion is attributed was used for the first time on the occasion of the accident. It was placed in the machine by the brother of the plaintiff, a workman whose experience in wire-making extended over a number of years. He had never known such an explosion to occur before, and it is to be inferred that he detected nothing defective or unsuitable in the construction of the die, or he would not have put it into the machine upon which the plaintiff was to work. Indeed, when he examined it after the explosion he says: I looked the die all over and the die seemed to be all right; it was kind of- full on the face; the die was full in the face of the die; that was the only thing I could see was the matter with the die.” The convexity of which complaint is now made was discoverable only by the application of a straightedge, being so slight as not otherwise to be appreciable to the eye. ■ The contention in behalf of the plaintiff is that this convexity permitted the inclusion of air between the surface of the die and the molten lead which was forced up toward it, in such a manner as to cause an explosion by reason of the heat and compression to which the air was subjected ; and that the liability of such a convex die to cause such an explosion was so well known in pursuits in which metal dies are employed as to charge the appellants with such knowledge, and render them responsible for supplying a die of this shape to be employed by one of their servants who was injured by using it.

It is true that there was evidence to the effect that explosions are likely to occur in wire-making machines in-which convex dies are used, and that before the accident, to the plaintiff it was known to the art ” that, where hot metal is to be forced through a die, explosions might be avoided by making tlie die slightly concave so that the air could not collect in it. An expert witness also expressed the opinion that the surface of the die produced on the trial as that which was in use when the plaintiff was injured was sufficiently convex to bring about the explosion which actually occurred. There is no proof, however, that so slight a convexity ever before caused such an explosion or any explosion at all. The die exhibited to us upon this appeal presents to the unassisted vision what appears to be an absolutely flat and smooth surface. If it had been proved that it was known either to the appellants or among wire makers generally prior to the injury to the plaintiff, that dies" of such extremely slight convexity were capable of causing violent explosions, the defendants might be held liable On the ground that they had failed to exercise due care to furnish safe machinery for the use •of those in their employ, but, in the absence of any evidence Of this kind, the employers were - not chargeable with negligente. The action of the plaintiff’s brother in placing the die in the machine for the plaintiff’s use and his subsequent inability to discover anything which he deemed seriously faulty in its construction, go very far to confirm our conclusion that the proof does not show the defendants to. have been in fault. If the die was improperly constructed, and •due care and inspection on their part would have revealed that fact, the defendants would not be excused merely because they were ignorant of the defect (Benzing v. Steinway & Sons, 101 N. Y. 547); but without any experience of their own or others to warn them that an apparently flat die might really be convex and, therefore, dangerous,' I do not see how negligence can be imputed, to them for regarding it as perfectly safe.

For these reasons, I think the judgment should be reversed.

All concurred.

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