
    Charlotte Rogers, Respondent, v. James Macbeth, Doing Business under the Firm Name of James Macbeth & Company, Appellant.
    Second Department,
    January 10, 1908.
    Mew trial — probable result before new jury immaterial ^master and servant — injury by explosion — weight of evidence as to instruction.
    When the trial court finds that a verdict for the plaintiff is not supported by the evidence, it cannot deny a new trial upon the ground that sympathy for the plaintiff will probably beso great as to lead another jury to award still greater damage. \
    Evidence in an action against a master to recover for injuries received by the explosion of blasting fuses examined, and held, to be insufficient to warrant a finding that the plaintiff was not instructed as to the inherent danger of her occupation. . • ,
    Appeal by the defendant, James Macbeth, doing business under the firm name, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 20th day of October, 1905, upon the verdict of a jury for $5^000, and also from an order entered in said clerk’s office on the 23d day of October, 1905, denying the defendant’s motion for a new trial made upon the minutes.
    . William A. Moller [Henry Yonge with him on the brief],- for the" appellant.
    
      William W. Gillen, for the respondent.
   Jenks, J.:

In this- action the servant recovered a verdict of $5,000 for personal injuries dne to her master’s negligence. The court denied the motion for a new trial, for the r.eason. that it was powerless to dismiss the complaint absolutely, and that it was convinced that any new trial might cast heavier damages upon the defendant. The court thought that no other jury could be more intelligent or more conscientious, and, therefore, that any jury would err as did this jury in framing 'some occult theory whereby out of pity it would mulct the master in damages. The court made this disposition of the motion although it expressly said that it was" not conceivable that twelve sane men could find it possible that a servant like the plaintiff could under lier conditions be so ignorant of the work she was doing and its peril, or that the master could be so indifferent of the safety, of his servant and her fellows, and of his own interest, as to permit her to work "for him in .ignorance of the perils. The coiirt stamped the plaintiff’s story as unreasonable, improbable," unbelievable. This deliverance came from a judge strong at nisi prius, of wide experience, of great wisdom and sound common-sense, one who did not jump at conclusions, who held his temper under complete control, and who had withal warm sympathy for his fellow-men. I cannot but feel that this disposition of the motion was paternalism foreign to judicial function. If the defendant chose to hazard another trial, it was not for the court to seek to save him from himself by withholding from him that which the court thought lie was entitled to receive. Tlie court could not even forecast the final issue. And its disposition of the motion was rather upon the theories of Gustave Le Bon (“The Crowd,” p. 170 et seq.) than upon an exercise of the judgment required by the law. Even sympathy does not hold equal sway with every set of twelve indifferent men sworn to make true deliverance upon the evidence.. I have read this. record of course mindful of. the trial court’s opinion, but I think not dominated by it, and I have arrived at the conclusion that the judgment should not stand in that it is against the weight of the evidence. ' The servant complained of many shortcomings of the master which were asserted to be negligence, but the court without objection submitted the case to the jury upon the question whether the plaintiff was informed of the inherent danger of her occupation. The defendant manufactured fuses to explode dynamite cartridges used for blasting. The plaintiff, an intelligent woman of twenty years, was in his service for a year. For a time she worked in -the box department, later in the wire' department and for the last three months of her term at a paraffine table. The fuse consisted of a brass "shell in circumference smaller than a common lead pencil and was made elsewhere. This shell was charged with fulminate of mercury, and attached to the cartridge thus máde was a wire, which served to connect the cartridge with an electric-battery which exploded the cartridge when thé" cartridge had been.placed inside of the dynamite" bomb used to. fire a blast. Fulminate of mercury was kept wet and packed in sawdust in the defendant’s yard, and. only so much as was immediately needed was brought into a room of the defendant’s factory. The cartridges were charged in that room by the foreman or Superintendent of the workmen and her assistant. Then they were taken into another room and given 100 at a time to the filling girl or girls. The filling girl sealed the cartridges, putting tight onto each one an iron disk, block or plug, and then poured .over this disk hot sulphur, which also served to set and to hold fast the wire. It then became the duty of another set of employees to fetch the cartridges to a table called the paraffine table and there to dip each one into heated paraffine. This was to make the cartridge waterproof. - Before applying par-affine, the employee was required to pick off with her finger any superfluous bits of sulphur from a cartridge in order, I take it,- to present a smooth surface for the paraffine application. This plaintiff was at the paraffine table and the'work last described was her work. It appears that on the day in question there was an explosion of the cartridges at or near or on her table, and in consequence the plaintiff lost one eye and suffered impairment of the other. There are two versions as to the cause of the explosion, but the learned court did not attach vital importance to the determination of the truth of either version, for it instructed the jury that, if the plaintiff was ttitally uninformed of the inherent danger of the master’s business, her recovery did not depend on the determination of the truth as between the two versions-. I shall discuss these verO sions later. It suffices now to state that there is no contention that the explosion was due to any act of the master or of any other one of his servants ; but that the explosion was due to the handling of a cartridge or of cartridges by the plaintiff herself. Her testimony is that when she was transferred to the paraffine table Elizabeth Hart, the foreman or superintendent, said to the plaintiff that she was going to put her upstairs, and told Miss Donovan, a young woman in the paraffine department, “ Hellie, you learn Lottie how to paraffine.” The plaintiff testifies that before that time Miss Hart had never informed her of any danger of the employment or of any danger that might be incurred at the paraffine table. She further testifies that'slie only knew that the place was called an electrical shop, that she never knew what the fuses were, that she never had made inquiry as to their-use and that she never liad discussed, their use with any of her .fellows nor they with her. She testifies that she liad no idea that there was any explosive used in these cartridges, that she never asked -any question about them, that it never occurred to her ■ that a cartridge was dangerous, that. she never thought anything about it. She also testified that, she had never heard any sound of explosions in the place.. She. was shaken on her cross-examination to .the extent that she admitted that she knew that they must not touch the cartridges on the filling table, and that there had heen a discussion among the women of: there being danger in the shop, and although there was nothing., said about the danger being due to the use of .e-xplosives she did-not know just what it was.' Her witness Donovan who, .the plaintiff says, was her instructor at the paraffine table, testifies that she did-not warn the plaintiff that there was any danger in the work. Indeed she testifies that she had. no idea of what she Was working at — not the slightest, that there never was talk of danger among the workmen, that she had not the remotest idea for what the fuses were used, that she did not know what a fuse was or what a cartridge was, that she had never heard even of a rifle. Another witness of the occurrence was almost' equally ignorant, and like the plaintiff had .never heard any explosions. The defendant had closed out all of his interest in the business before "this trial. ,1 note this fact for the reason that of all -the witnesses called, by him, save Elizabeth Hart, of whom many"'were fellow-servants of the" plaintiff, none was' subject to the criticism that she was .testifying for her. employer. Miss Elizabeth-Hart, employed for 15 years and.supei- , intendent of the fuse" department, .employed the plaintiff. ' She testifies that she told the plaintiff of the character' of the place* that they were making fuses to blast rock and that her work was dangerous and very dirty, that she must use great caution, that no. “fooling” and-no .conversation was allowed" while they were at work, and moreover when she transferred plaintiff to the paraffine table she told her to be very careful not to strike the cartridges against the drip pan or the paraffine pot, otherwise they might explode —to use them gently, that she thus warned every girl about the explosive work, and that -once when Miss. Bernsen* a fellow-servant, had complained of the plaintiff for carelessness while at work at the packing table she had warned plaintiff not to pound the fuses into the box with her elbow, for they might explode. She also testifies that they make tests of the fuses in the yard at least twice a week and that the explosions therefrom could be heard all over the place. The witness Mrs. Cannon corroborates Miss Hart in that she heard the latter caution the plaintiff about care in packing the cartridges, saying that there were explosives in the cartridges. Miss Bemsen, the complainant, who caused Miss Hart to speak to the plaintiff, corroborates both witnesses in this respect. Miss Sewley heard the assistant superintendent say that the plaintiff, while coming up the aisle, was hitting cartridges against her rubber apron and then heard the assistant superintendent tell the plaintiff she must not do this for the cartridges were dangerous and might explode. The assistant superintendent testifies that when she once saw the plaintiff throw the fuses carried by her from the filling room down on a table that she cautioned her of the danger of an explosion. Miss Beilly testifies that she had talked with the plaintiff before the accident and had told her to be careful, that the place was dangerous. and that she was led to do this because of a careless act of the plaintiff. Almost all of these witnesses testify to the noise of the explosions from the bi-weekly tests, and it is shown that it was the practice to warn the employees before the tests lest they should be frightened by the reports. The plaintiff in rebuttal called several employees who testified that they had not been warned of the danger by Miss Hart, in order to discredit her statement of her uniform practice, but their testimony was rendered of little or no importance by their admissions that they were not employed in any part of the work which brought them in contact with the fuses. There is nothing suspicious in the testimony of the various cautions administered to the plaintiff, if we believe that these fellow-servants realized the inherent danger of the work and understood that any careless act of. one of their number might imperil more or less the safety of them all. So far as the testimony is concerned, the plaintiff is outsworn on the question whether she was apprised of the inherent danger, by a great number of witnesses, some of whom were her acquaintances of many years and of whom all were her fellow-servants testifying free from any apparent bias and out of any relation of employment with the defendant. Mot only, to my mind, is the story of such crass, ignorance as the plaintiff testifies to incredible, but as I have shown she is contradicted by many witnesses as to her lack of warm ing or information. But beyond all this, is it probable that this superintendent and this assistant superintendent whose constant duty it was to walk about the room and to oversee the work would never have cautioned the plaintiff, would never have informed her of the constant danger, if for. no ^other reason than that of the selfish prompting to save themselves from the extreme peril which attended any careless or thoughtless act of the plaintiff engaged in constantly handling these cartridges charged with high explosives ?

I now comment upon the different versions of the accident as they have a bearing at least upon the credibility of the ■ plaintiff. She testified that she' was at her work, engaged in picking with her .finger nail .the superfluous sulphur which had overflowed the protection of the cap and the fastening of the wire,-preparatory to dipping the cartridge into the paraffine, when the cartridge' exploded in her hand and caused the other cartridges on the table to explode. She is corroborated by two witnesses. Miss Emily Sherd man', who was a boxmaker, says that she was arranging boxes on the floor ; that she was looking at the plaintiff and saw her take one or two cartridges from those that she had in her hands, and pick the sulphur from them and then they exploded. On cross-examination she testified that up to that time she had not noticed for nine months how the particular work was done, but she just happened to turn at this time to see what the plaintiff was doing; that up to that time she had never had any time to spare; that she suddenly wanted to know how plaintiff did her work and so on this occasion she watched particularly while that on all other occasions she did not; that she looked this morning to be sure how the work was done, and that at the time she was kneeling on the floor arranging .the boxes. The other witness was Jennie Block, who testified that she saw the plaintiff coming down the aisle; that she had readied lier table and was picking sulphur from the caps when the explosion Occurred. -The superintendent, Miss Elizabeth Hart, testified that she did hot see the accident happen, as she was out of- the room for á short time, but she testifies that the witness Sherdinan was not in that room, that she was quite sure of it, that she had no doubt about it; that the boxes were made out in the machine shop. The witness Cannon testifies that she saw the plaintiff just before the accident, that she was doing a “cakewalk” with Miss Malore, that she was' coming from the fillers with cartridges down the aisle, dancing,'“doing the steps;” that cartridges were hanging by the wires on her arm; “ I saw her just before she got to -the table. Some one called out, Cheese it, here is Lizzie,’ and Miss Malore went to her place and Lottie went to the paraffine table and threw them, violently on the paraffine pot, and then, the explosion occurred.” Mrs. Mary Owens was another' employee. She testified that she saw the plaintiff as she was passing- witness’s table, and that she was doing a cakewalk with Miss Malore. “ By the cakewalk I mean,kind of a fancy walk, a sort of a high stepping walk;”, that the cartridges were hanging on her arm,-but she. did not see-plain tiff at the time the accident happened; but that after she saw plaintiff walking down, the accident happened, within a few seconds. Miss Malore testified that she ,and the plaintiff came down the aisle together, that they were “ swinging a little, doing some pretty lively steps, steps that are sometimes used in a cakewalk,” and the plaintiff had fuses on her arm; that she left quickly, went to lief work, and almost immediately she heard the explosion. She says: “We were simply young girls.. * * * I mean when I say doing the cakewalk that we were stepping high and strutting down.” Mow it was the business of the plaintiff, as she herself testified, to go and get these fuses and to bring them to her table. She says that Miss Hart walked up- and down the room watching the girls filling the cartridges with sulphur. She was there- most of the time watching them all. “ Sometimes I would, as all young girls will, that are full of life, (¿S¡ic.) I Would like to chat and go to balls and things of that kind the night before and would like to chat about them the next day; and Miss Hart was there so as to have us not give too much of our time(to that sort of a thing. * * * I had just come from the other end of the room.” It may be here noted, referring to the slang expression, “ Cheese it, here is-Lizzie,” that the first name of Miss Hart was Elizabeth..

There is no evidence as to any other injuries' of the plaintiff. I do.not assume to speak as an expert, and I know that the line of the trajectory in an explosion is not constant, but may be in aberration; but is it not likely that if the plaintiff held a cartridge in her hand at the time, and it exploded from the' contact of her haud, there would have been some injury to her hand ? Further, the plaintiff called an expert who testified that the cartridges were exploded normally by heat from the electricity; that one of these cartridges might be exploded in shaking off the paraifine if you. hit it. against any metal or hard substance, because concussion alone would explode it; and that fulminate of mercury can be exploded by heat and by friction. He then testifies that the fulminate inside of the cartridge might be exploded by friction produced by the hard rubbing over the cartridge to remove the sulphur, providing the plug was not tight, but if the plug was tight it could not .happen ; thaki't might be .exploded by rubbing the finger nail -over it if it was heated; it. might if there was a break in th„e shell and the fulminate was exposed.. But. it is quite evident that the natural method of explosion is by heat or concussion. The Hew International Encyclopedia says of. fulminate of mercury: “ When moist it may be handled without much danger, but when dry it explodes with violence if struck by a hard body or if heated.” How,-the expert on cross-examination said that he had worked at this bush ness; that he had never exploded fulminate of mercury by pouring sulphur into the shell, and that he had made the test over and over again. The operation of pouring the sulphur over the shell had been completed before the plaintiff took the cartridges from the filling gii-1;. therefore,, we may eliminate the heat, because, of course, she had to pick off the sulphur before she applied the paraffine. There remains, then, but the theories of friction by the finger nail or concussion from throwing the cartridges down on the table where there were iron utensils and hard paraffine. Which is' the more likely? The superintendent, for the defendant, Clifton, testified that he examined the scene of the explpsion ; that there .was a large hole blown -in the top of the drip kettle, and that in his- opinion as an expert the explosion was due' to a blow on top of the hard paraffine; but that he-knew nothing about this accident save by examining the spot. '• •

I have come to the conclusion that 'the verdict was against the weight of evidence to the extent that the appellate court cannot be satisfied with the judgment based upon it, and, therefore, under the authority of McDonald v. Metropolitan St. R. Co. (167 N. Y. 66, 70), I think the judgment should be reversed and that a new trial should be granted.

Woodward, .Hooker, Gaynor and Miller, JJ., concurred.

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