
    Edward J. Gozzett, Respondent, v. Albert Plaut and Joseph Plaut, Appellants.
    Second Department,
    October 11, 1907.
    Master and servant—negligence—explosion of opaque vessel used to compound drugs.
    An expert drug compounder who has been injured by the explosion of a tin vessel used in making spirits of phosphorus, with the compounding of which he was familiar, which explosion was presumedly caused by the ignition of alcohol vapor brought into contact with a particle of phosphorus adhering to the interior of the opaque vessel, cannot recover from his employer on the ground that he was negligent in failing to f-urnish a glass vessel in which to make the compound.
    As the plaintiff had knowledge that if the water which was usually kept in such vessel were emptied out, any particles of phosphorus would unite with the oxygen of the air, it was his duty to rinse the vessel thoroughly before attempting to use it to make the compound.
    Although there was evidence that other laboratories had used glass flasks for the purpose, the defendant was not required by law to furnish the best-known • appliance, the tin vessel being perfectly safe if properly cleaned before use. In any event it w;as the plaintiff’s duty to ask for the glass vessel if he believed the tin vessel to be dangerous.
    Appeal by the defendants, Albert Plaut and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerlt of the county of Queens on the 29th day of December, 1906, upon the verdict óf a jury for $2,500, and also from an order entered in said clerk’s office on • the 10th day of January, 1907, denying the defendants’ motion for a new trial made upon the minutes.
    The action was for damages for negligence. ■
    The plaintiff was hurt while working for the defendants, who are manufacturing chemists. His work was compounding drags. He learned the art with a firm in London, England. He served with .them 13 or 14 years. He applied to the defendants for employment in 1900. He represented himself to them as a compounder of drugs and was employed by - them as such. He was about 38 years old when he was hurt. His duty was to mix or compound drugs as, orders came in from purchasers. He worked Continuously -with -the defendants until he was hurt in 1904. He was making spirit's of phosphorus, viz., a compound of alcohol and phosphorus when hurt; He had made- this compound for the. defendants ' several times previously. There was a tin can kept for the .purpose,. It was round, and sloped in gradually at the top to a round rim oi‘ neck. This Was the opening.. This can was used for no other purpose! .When not in -useiit was kept filled with water, To make the- compound the water had to he. poured out. The alcohol was-then poured in and afterwards the phosphorus was weighed and added. While the plaintiff’s assistant was pouring in the -alcohol the vapor of it exploded inside the can and blew the can into bits! The. plaintiff was burned, .- The oxygen in the air causes phosphorus to fume and ignite..' The-plaintiff testifies, that he kné'w this, ■
    
      Edward P. Mowton, for the appellants.
    
      John Hetherington, .for the respondent.
   Gaynor, J.:

' This case should have been dismissed. The negligence alleged,' and on which, the verdict is based, is that the defendants should have furnished a glass vessel instead -of. a tin one in which- to compound the alcdhol and phosphorus, The theory on. which the case went to the jury.was that a particle or some particles of phospliorns had adhered to the upper part of the inside of tlie vessel, the tin can, from its previous use, and ignited from the oxygen in the .air which went into the'can as the water was. poured out, .exploding the -vapor of -the alcdhol which had been poured in. It was claimed by the plaintiff that if the vessel-had been of glass the plaintiff could have seen any such particles; on the, inside, and .'would have, rinsed them out before the alcohol was poured in. It. was also said that such particles would be less likely to ádheré to a smooth surface, like-that, of glassy than tó á rough' surface. There is .no evidence -that the inside of the.tin can was rough. The inside of a tin vessel'is ordinarily polished and smooth. The evidence is that water would separate any particles of phosphorus in' the. vessel,-artd that they would come out with the water poured from it. The can stood tilled with water when not in use. The plaintiff testified that he knew that particles of phosphorus would ignite from the oxygen in the ah*. It was therefore his duty to use due care to rinse the can out, and if necessary swab it out before using it; for he represented himself to be a compounder of drugs, and must be held to know that the vapor of alcohol will explode from contact with flame.. Who knew it if he did not ? If such knowledge cannot be attributed to him it cannot be attributed to his employers. He had worked at the craft of compounding drugs for 18 years. He Was skilled in it. There is no evidence that tin vessels are not ordinarily used by manufacturing chemists for the use to which this one was devoted. Two witnesses said they had seen glass flasks used in a laboratory. The defendants were not required by law to furnish the best known or conceivable' appliance, but only such as was reasonably safe and suitable. The one furnished was perfectly safe if properly cleaned before being usedand vessels in which drugs are compounded have to be scrupulously cleaned. Moreover, the plaintiff never asked for a glass vessel or complained of the tin one. He was as competent to know whether a tin one was dangerous as any one, and it was his duty to tell his employers that it was dangerous if he knew it was or believed it was (Burke v. Witherbee, 98 N. Y. 562; Sweeney v. Berlin & Jones Envelope Co., 101 id. 520; Harley v. Buffalo Car Mfg. Co., 142 id. 31).

The judgment, and order should be reversed.

Jenks, Hooker,. Rich- and Miller, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the final award of costs.  