
    William C. Benfield, Resp’t, v. Vacuum Oil Company, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1894.)
    
    1. Master and servant—Rules,
    Failure of the master to prescribe rules for the conduct of his servants renders him liable only for the act or neglect of a fellow servant in the same employment.
    
      2. Same—Instruction.
    The duty of the master to instruct his servants against dangers incident to the. business, discussed.
    3. Same.
    The master is not liable for an injury from a danger which could not reasonably have been apprehended by him.
    Appeal from an order denying a motion for a new trial made on the minutes of the court.
    
      William N. Cogswell, for app’lt; Charles Van Voorhis, for resp’t.
   Dwight, P. J.

The plaintiff had been in the defendant’s employ for a year and a half, engaged in the same duties and exposed to the same dangers as at the time when the accident occurred from which the injury was received of which he now complains. The accident was the explosion of gas in a tank in which paraffine was being heated, and it was caused by the act of the plaintiff himself in raising the lid of the tank with a lighted lantern in his hand, or hanging on his arm. The gas escaping from the open tank communicated with the flame of the lantern, and the explosion followed, in which the plaintiff was burned and otherwise injured. The paraffine tanks or boilers were outside of the building, and were buried in the ground, except the openings through which they were filled and emptied, and to which the covers were fitted. The tanks were heated by steam, introduced by means of coils of pipe, from which it was the duty of the engineer to shut off the steam when sufficiently heated ; and, at the proper time after that, more of the cold and solid paraffine was added, and the heat renewed. The cold paraffine was brought from the presses inside of the building in a hand cart, and thrown or dumped into the tank, and this was the duty, among others, of the plaintiff. The operation involved the danger of being splashed with the already heated contents of the tank, and to obviate this the men were in the habit of lifting the cover a suitable time beforehand in order to cool down the contents before filling. It was for this purpose only that the plaintiff went to the tank at the time of the explosion. He had no need of his lantern, except to light his way to the tank. He had no occasion to inspect the contents or condition of the tank in any respect, but only to raise the lid; and for this purpose the lantern would have served him as well set down or hung up at a safe distance as carried to the very mouth of the tank. The failure to observe this precaution was the sole cause of the accident, and the only question for the jury was, “Whose fault was it?” or “Was it solely the fault of the defendant? ” For if it was even partly the fault of. the plaintiff there can be no recovery in this action. The plaintiff seeks to charge the fault to the defendant on the grounds (1) that it failed to give the plaintiff the necessary instruction ns to the explosive character of the gases evolved from petroleum in the various processes of its refinement and manufacture; (2) that it failed to provide proper lighting for the tank; (3) that it failed to provide proper rules for the government of its employes.

The second and third of these grounds need not occupy very much of our time. It is plain that the doctrine of the liability of the employer for failure to prescribe rules for the conduct of his servants has application only to charge the employer with responsibility to one servant for the act or neglect of a fellow servant in the same employment. In this case there was only one fellow servant whose act or neglect seems to have borne any possible relation to the accident in question, and the plaintiff does not seek to charge the defendant with responsibility for his act or neglect. That servant was the engineer, whose duty to turn off the steam from the tank at the proper time was well understood by him, but who on this particular evening intrusted that duty to the plaintiff himself; so that, if the steam was not shut off in time, or the tank was opened too soon after the steam was shut off, the plaintiff has only himself to blame.

In respect to the lighting of the tanks it was in evidence that there were some electric lights in the yard—though the plaintiff testified that they were not so situated that he could see at the tank which exploded—and that a new electric light had been put up, within a few days, on the outside of the building, near the tank, which could have been lighted by turning on the electricity by a switch inside; but the plaintiff testified that he did not know of its presence, and that the light was not turned on that night. But we do not consider these facts of much importance, because, as already appears, up to the time of the explosion no light was necessary, except to show the way to the tank, which, after his 18 months’ experience, must have been very familiar to the plaintiff, and plainly did not require that his lantern should be presented at the very opening of the tank.

We are of the opinion, therefore, that the question in the case is narrowed down to the first of the grounds above enumerated upon which negligence is alleged against the defendant, viz.: the failure to give the plaintiff necessary instructions as to the dangers to be guarded against in the performance of his duties, and especially in the use of a lantern in proximity to the paraffine tanks. And in this respsct it seems to us that the verdict, which charges the defendant with culpable negligence which was the producing cause of the accident in question, was against the law and the facts of the case as it was made on the trial under review. In the first place, it is to be observed that the defendant was not required to exercise the highest possible diligence to instruct the plaintiff in every conceivable particular of the circumstances in which he might be placed, or in every possible detail of his conduct in the performance of his duties. The requirement in this respect is only that the master exercise ordinary and reasonable care to see that the servant possesses a competent knowledge of the peculiar dangers to which he is exposed in doing his work, and of the precautions necessary to be taken to guard himself against those dangers; and in the exercise of that care the master has the right to assume that the servant brings to the work ordinary intelligence and powers of observation, and the capacity to learn something from observation and experience. De Forest v. Jewett, 23 Hun, 490, 493; affirmed 88 N. Y. 264. Moreover, the dnty to instruct against dangers incident to the work extends ordy to such dangers as are known to the master himself, or which are reasonably to be apprehended from the nature of the employment. Devlin v. Smith, 89 N. Y. 470, 476; Stringham v. Hilton, 111 N. Y. 188, 195, 196; 19 St. Rep. 621. In this case the plaintiff had had practical experience of a year and a half in the performance of the same dunes as those in which he was engaged on the night of the accident, and it is impossible to believe that he bad not in that time acquired some knowledge of the nature and properties of the substances with which he was engaged; that he had not learned that the products of petroleum, under some conditions, and especially the condition of great heat, are capable of generating explosive gases, and that it is unsafe to bring fire into contact with those gases when they are being evolved.

But the plaintiff testifies that he had been in the habit, during the whole of his experience with the paraffine tanks, of doing the work assigned to him in the same way as on the night in question, and that no explosion had ever before occurred. If this is true,— if he had habitually raised the lid of the tank with his lantern in his hand, or hanging on his arm, and done so with impunity,— then the inference is unavoidable that the conditions present on the night in question were materially different from those which usually prevailed, and the only reason for that difference which is suggested by the evidence is that the heat in the tank was greater than it ordinarily was when the lid was raised, and that this was caused by leaving the steam on longer than was proper, and that the tank was opened too soon after the steam was shut off. This conclusion, if it afford the correct hypothesis to account for the unusual, and indeed unprecedented, explosion, is important in two respects as bearing upon the question of the defendant’s liability; for, first, it tends to show that the danger here encountered was one not reasonably to have been apprehended by the defendant; and, second, it demonstrates either that the negligence of the fellow servant, the engineer, who devolved his own duty upon the plaintiff, or of the plaintiff himself, who undertook the performance of that duty, or of both, contributed to occasion’the accident, and to produce the injury complained of; and in either case there could be no recovery in this action. We think the motion for a new trial, which presented the questions here considered, should have been granted. The order appealed from should therefore be reversed.

Order appealed from reversed, and a new trial granted, with costs to abide the event.

All concur.  