
    Aaron P. Huffmire, Appellant, v. General Electric Company, Respondent.
    Third Department,
    May 5, 1915.
    Master and servant — negligence — injury to foreman by explosion of oven used for baking cores and moulds — erroneous nonsuit.
    In an action by a night foreman of the defendant, to recover for personal injuries alleged to have been sustained by the explosion of an oven maintained by the defendant for baking cores and moulds, it appeared that the oven, consisting of a large room, was heated with fuel oil mixed with ah', which was introduced into a flue or trench running through the bottom of the oven underneath the floor; that it required some skill and experience to mix the air and oil; that the man usually in charge of the operation of the ovens was absent on the night of the accident, and a laborer with some knowledge thereof took his place; that the plaintiff did not know of this change until a few minutes before the accident; that on the afternoon of the day of the accident repairs had been made to the trench of the oven in question, and a form consisting of dry wood had been left therein, and neither the plaintiff nor the laborer in charge of the ovens had been notified thereof, and that this wood could only be gotten out by burning, which was usually done when the fires were started.
    Held, that it was error to grant a nonsuit at the close of the plaintiff’s evidence.
    Appeal by the plaintiff, Aaron P. Huffmire, from a judg- • ment of the Supreme Court in favor of the defendánt,' entered in the office of the clerk of the county of Schenectady on the 17th day of June, 1914, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case.
    
      John R. Parker [Edgar T. Brackett and William E. Bennett of counsel], for the appellant.
    
      James O. Carr and Daniel Naylon, Jr. [.Naylon & Robinson of counsel], for the respondent.
   Howard, J.:

The accident in question occurred in one of the shops of the defendant at Schenectady. In this shop there are ovens, which are simply large rooms thirty-six by twelve by twelve feet in dimension, and these ovens are used for baking cores and moulds. The ovens are heated with fuel oil mixed with air, which is introduced into a flue or trench which runs through the bottom of the oven the whole length underneath the floor. It requires some skill and experience in mixing the air and oil, which is done by valves on the outside of the oven. One Jerry Pringle, an experienced man, was usually in charge of this matter and in fact in charge of the entire operation of the ovens. On the night in question he was absent and one Piotrowski, a laborer, with some knowledge of the ovens, took his place. The plaintiff, who was night foreman of the shop, did not know until a few minutes before the accident that Pringle was off. The fires in the ovens are lighted from the outside by sticking a torch through an opening in the wall to the inside and the metal door to the oven is usually left open for a few minutes when the fire is first lighted to allow the gas to escape. On the afternoon of the day of the accident, Cooper, the furnace engineer of the defendant, had been working with several men making repairs to the trench of the oven in question. A form, or falsework, as it is called, consisting of about twenty-five pounds of soft, dry wood was used in making these repairs and this falsework could only be gotten out by burning it out. Such repairs were common and the falsework was usually burned out when the fires were started in the ovens in the regular way, although it could be burned out before that with lighted waste. On this occasion it was left in and neither the plaintiff nor Piotrowski were notified about it. The day shift went off at five-thirty p. m. and the night shift came on at six p. m. About eight p. m. one of the ovens exploded and badly burned the plaintiff.

At the close of the evidence a nonsuit was granted. The trial justice wrote no memorandum and made no comments at the time of granting the nonsuit so that we are wholly uninformed as to the considerations which induced him to grant the motion; but we think the defendant should have been put to its proof.

The defendant contends that if there was any negligence it was the negligence of Piotrowski in failing to raise the oven door when he lighted the fire. If the accident happened because of the negligence of Piotrowski, unless he was incompetent and inexperienced, the plaintiff cannot recover, for Piotrowski was a fellow-servant of the plaintiff; but whether it was his negligence or the negligence of the defendant was a question of fact for the jury. The court could not say, as a matter of law, that the negligence of Piotrowski caused the accident. But assuming that the accident happened because of Piotrowski’s negligence, it then became the province of the jury to determine whether he was a competent and experienced man; for the complaint alleges that he was incompetent and careless ” and that the defendant was negligent in furnishing such a man to operate the ovens. Assuming further that Piotrowski was a competent man and also assuming that in this instance he was negligent, that fact would not exonerate the defendant if the negligence of the defendant concurred in producing the accident. (Walters v. Fuller Co., 74 App. Div. 388; Chiavaroli v. Union Bag & Paper Co., 131 id. 372; Devine v. Hayward, 128 id. 705.)

The defendant contends that the evidence fails to show what caused the explosion and that, therefore, the plaintiff has failed to show that it was caused by the negligence of the defendant. It is true that direct evidence as to the cause of the explosion was not produced. But direct evidence was not absolutely necessary. Circumstantial evidence is as reliable and convincing and effective, frequently, as direct evidence. In this instance certain cogent circumstances were presented from which a jury might well have reached a conclusion that the defendant had been negligent. The defendant knew that the ovens were liable to blow out, unless properly operated, for some of them had blown out before. The falsework was shown to have been in the flue. This created an additional danger at the time of lighting the oven. Unless extra precautions were taken there was greater probability of an explosion. Cooper, the defendant’s furnace engineer, and also Tandy, the defendant’s general foreman of the shop where the explosion occurred, knew of the falsework and yet they failed to notify either the plaintiff or Piotrowski. The jury might fairly have concluded from this evidence that the explosion was caused by lighting the fire in the usual manner with the falsework in the flue — Piotrowski not knowing that it was there. It is contended that it was not necessary to notify Piotrowski of the falsework for the reason that he could see it plainly as soon as he lighted the fire. But this is not quite certain, for Cooper, the furnace engineer, testified that it would be necessary to get down on the level with the floor in order to look into the flue. Piotrowski not being the regular man in charge of the ovens and not being particularly familiar with their operation, was it not negligent on the part of the defendant to fail to notify him of the falsework ? This was a question for the jury. Had the plaintiff known of the absence of Pringle and been notified of the presence of the falsework in the oven, it may be assumed that he would have given the matter his special attention. He knew nothing about the falsework and did not know of the absence of Pringle until too late.

The complaint having been dismissed the plaintiff is entitled to the most favorable inferences fairly deducible from the testimony. Therefore, under all the circumstances, we think there were several questions for the jury. They may be briefly summarized as follows: Was the defendant negligent in not notifying either the plaintiff or Piotrowski of the presence of the falsework ? Was Piotrowski an incompetent man for the work assigned to him ? What was the cause of the explosion % Other questions may also present themselves at a new trial. We are not attempting to limit the subjects for the consideration of the next jury but are only indicating those which we think should have been submitted to the jury in the box when the nonsuit was granted.

The judgment should be reversed and a new trial granted.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.  