
    Barbara Stenger, as Administratrix, etc., of Joseph Stenger, Deceased, Respondent, v. The Buffalo Union Furnace Company, Appellant.
    Fourth Department,
    November, 1905.
    Negligence — death by falling into hopper while feeding furnace — improper evidence that intestate was overcome by gas — erroneous charge as to duty to give instructions.
    When plaintiff’s intestate has been killed by falling into a hopper while feeding a furnace, it is error to allow testimony that the windows of a small house furnished for employees were allowed to remain broken so that gas from the, furnace blew in and affected the intestate, if there be no charge of that nature in the complaint.
    
      It is. also error to allow testimony that on prior occasions gas issued from holes in the furnace and overcame the men, such testimony being a conclusion bearing upon tire question as to whether the intestate was overcome by.gas—the' precise issue involved.
    While a failure to give' proper warning of hidden dangers to employees is á ground of negligence, it must be alleged in the complaint to be available. Hence, it is error t.o charge that it was the duty of the defendant to give such instructions,, when its failure to do so is- not alleged. .
    Appeal by the defendant, The Buffalo Union Furnace Company, from a judgment of the Supreme Court in favor of. the plaintiff, entered in the office of the clerk of the county of Erie on the 10th day of February, 1905, upon the verdict of- .a jury for $5,000, and also from ail order entered in said, clerk’s office on the 10th day of February, 1905, denying the- defendant’s motion for a new trial made upon the minutes. • .
    
      Clinton B. Gibbs, for .the appellant.
    
      George H. Kennedy, for the respondent.
   Hiscock, J.:

¥e think that the judgment and order appealed from must be reversed on account, of errors committed by the trial justice in the admission of evidence and also in his instructions to the juiy.

The action is brought to recover damages on account of the death--of plaintiff’s intestate which is alleged to have been caused by the negligence of the defendant while he was. in the employ of the' latter. At the timé, intestate was engaged in dumping material into thé top of one of defendant’s furnaces and he fell into the hopper' thereof receiving injuries from which, beyond dispute, he subsequently died. It is the claim of the plaintiff that various portions of this furnace were in a defective, condition, allowing a large amount of gas to escape, which overcame intestate and caused him to fall as aforesaid. ■ ' . . '

The case has once before' been before this court upon an appeal by the defendant from a judgment.recovered against if. (98 App. Div. 361.) Upon that appeal such judgment was reversed for the reason that it appeared that in the ordinary and proper operation,, and condition of the.furriace a considerable quantity of gas would necessarily escape, and that it did not appear that intestate’s death was caused by gas escaping from defective conditions rather than by the gas incident to the proper condition and operation of the furnace.

Upon the trial now under review plaintiff sought to obviate the objections which proved fatal to her prior recovery and to introduce -such evidence as would at least permit a jury to say that her'intestate’s death was caused by gas which escaped through defective and unwarrantable conditions. We think that she has strengthened her case in this respect. But inasmuch as the judgment must be reversed for errors already referred to, and because the evidence may be still further changed upon another trial, we do not deem it wise at this time to determine plaintiff’s right to recover upon the main issue, and we pass to the consideration of the other questions presented.

(1) Upon the upper portion of the furnace was a small house, wherein the employees stayed while not actually engaged in dumping the “buggies” into the furnace. Upon the trial plaintiff’s counsel was allowed to show that at the time of the accident the windows and the door in this house had been broken in. There was also some evidence that the wind.blew from the furnace towards this house, and upon this evidence counsel argued that intestate had become affected by gas before he went from the house to the furnace upon the occasion when he fell in, and that it was negligence for the defendant to allow the house to become in the condition stated. This evidence was objected to as inadmissible under the pleadings, and the court, while admitting it, warned the counsel that it was dangerous. We think the evidence was inadmissible and erroneous. There is nothing in the complaint which to our minds fairly suggests any such ground of complaint as this, and at the time of its introduction no reply seems to have been made to defendant’s contention that it was not within the scope of the complaint. It is now urged that some bill of particulars has been served in the case which points out this alleged defective condition, but we are unable to find any such bill.

(2) Various witnesses, in spite of defendant’s objections, were allowed to describe various leaks in the furnace around which intestate was working, and then to state that “the gas would come out. and overcome the men,” or that “ a large amount of gas would naturally come out there and naturally overcome the men,” or that they were overcome by gas previous to the- accident to the knowledge of their superiors which came from holes in the furnace.

This class of testimony in substance was repeated several times, and there can be no doubt of its importance and of the influence which it would naturally exert upon the jury in various ways. The fact, if properly established, that other men upon other occasions prior to the accident, to the knowledge of their superiors,-had been ■injured by the same negligent acts alleged in this case, would certainly bé a potent circumstance in leading the jury, to find the defendant guilty upon this occasion. There possibly might be cases in which it would be permissible' for a witness to' state in general terms that he was injured by the same negligent conditions alleged in the case- u-pon trial, but we do not think that this should be allowed in this -case in the manner in which witnesses testified. It is a disputed issue whether intestate was- overcome -by inhaling gas in the manner' claimed by the plaintiff, and if he was, it is at best a. perplexing-matter to determine whether that gas came from the defects testified to by plaintiff’s witnesses or escaped from the furnace in its necessary and ordinary operation: With .all of the evidence which was introduced upon, that subject upon the prior trial,, this .court was compelled to hold as matter of law .that fit was a matter of speculation to say -that the gas which overcame intestate escaped'from the defective portions of the furnace. Under such-circumstances, we think, it was not permissible for the plaintiff, in the attempt to sustain-her theory that her intestate was killed by gas from unnecessary holes and apertures, to call witnesses to swear that- upon prior occasions they had been affected or overcome by-gas escaping from such places. That is one of the decisive issues to be carefully determined by the jury if sufficient evidence is pro-. duced to carry such issue to its consideration; and it should not be permitted to reason Or infer that intestate must-have been injured in this way because some witness testifies -to his conclusion that he had been so injured upon a prior occasion, no fact or circumstance being given to show whether his conclusion is well founded or not.

(3) The trial-judge, after various other instructions to the jury, charged them as follows: “ It was the duty of this defendant, under the circumstances disclosed by the evidence in this, - case, if this was a dangerous work, and I believe there is no dispute about that between the parties, that it involved danger to the men engaged in doing it, to have warned Stenger, when he entered its employ, of such dangers, if any, as were involved in the doing of the work that he had to do, which were not obvious, which could not be discovered and seen by him. It was bound, I say, to do that thing, and if it failed to do it, in that respect it was negligent. * * * It was also obliged to give him instructions concerning any hidden defect involved in the doing of his work as I have already stated to you.”

This instruction was excepted to by defendant’s counsel who asked the court “to charge the jury that there is nothing in the case which gives them the right to consider that question.” The court responded to this: “ There surely is. One of the witnesses testified directly and positively that no instructions were given.” The point was expressly made that no such issue was raised by the pleadings or otherwise.

It is somewhat difficult to determine whether the court had in mind the instruction of intestate in regard to the. dangers from gas 'naturally incident to the operation of a furnace in proper condition, or dangers incident to the defects claimed to have existed, if indeed they did exist. If his idea was the former one it was of course directly in opposition to the plaintiff’s theory in this case, which is, that intestate was not injured by the escape of gas naturally incident to the operation of a furnace in good repair, but by the gas escaping through defects. But whichever theory was present in the mind of the learned trial judge, we think it was improper for him to inject into the case this possible ground of negligence for the reason that it was not alleged in the complaint. Of course it is elementary that under certain conditions it is the duty of the employer to instruct his employee against hidden dangers of the employment and that a failure so to do may constitute a ground- of negligence, but there can be no- doubt that in order to avail himself of such a ground of negligence a plaintiff should allege it in his complaint. (Hickey v. Taaffe, 105 N. Y. 26, 34; Fowler v. Buffalo Furnace Co., 41 App. Div. 84, 86; O'Hare v. Keeler, 22 id. 191; Benfield v. Vacuum Oil Co., 75 Hun, 209.)

We are unable»to discover anything in the plaintiff’s complaint in this action which permitted her to have this- charge of negligence submitted to the jury as was done.

We further think that in overruling defendant’s objections the trial justice inadvertently overstated the evidence which was given upon this subject of instructions when he asserted that a witness had testified “ directly and positively that no instructions were given.”

The burden rested upon plaintiff, if it had been permissible, to . produce "evidence affirmatively establishing that no instructions were given to her intestate. So far as we can discover only twb witnesses spoke upon this subject, and as we interpret the evidence there given neither witness testified “ directly and positively that no instructions yrére given,” but at most that he personally could not remember to have given any. The evidence very clearly discloses that the men who were employed with intestate at and around the furnace understood that gas escaped therefrom and that there was danger of being -overcome. That precise subject was discussed between one of plaintiff’s witnesses and her intestate at the time the latter went out to do the work which resulted in his death. It is difficult to assume because two witnesses after the lapse of a. long time could not personally remember to have given intestate instructions, that no one else had given them- and that he was in ignorance of certain general conditions around the furnace which were known by other employees.

For the reasons stated the judgment should he reversed.

A1l concurred; McLennan, P. J., and Nash, J., concurred upon the additional ground that the evidence did not show that the death of plaintiff’s intestate was caused by negligence- of the defendant.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.  