
    MASTER AND SERVANT — TRIAL.
    [Franklin (2nd) Circuit Court,
    February 13, 1912.]
    Dustin, Allread and Ferneding, JJ.
    William J. Stubbins v. Buckeye Steel Castings Co.
    1. Employe's Obeying Special Order of Superior In Emergency ef Danger, Raises no Inference of Contributory Negligence if He Had no Knowledge of Defect Causing Injury.
    An employe of steel castings company, experienced in the business and knowing the dangers connected therewith, having, while tapping a furnace containing molten iron, observed an explosion resulting from dampness in a fire clay spout and mud joint, but not knowing of the failure to have'the fire clay thoroughly dried, raises no inference of contributory negligence barring recovery, by complying with a second order of his foreman to complete.the usual work of making the casting; in such an emergency the obeying of the special order is a question for a jury to determine whether the employe contributed ■ to his own injury. ,
    
    2. Defect In Metal Casting Device Made by Fellow Servants of an Employe on Another Time Shift not Delegated from Master.
    The fact that the fire clay lining of a spout and mud joint connection for tapping a furnace of molten metal, were made by fellow servants of an employe injured by failure to have the fire clay thoroughly dried does not relieve the master under Gen.- Code 6242, since the injured employe belonged to another time shift and did not know of the defect.
    S. Transmission of Order of Master through Fellow Servant* Immaterial in Fixing Liability.
    An order given in the first instance by a superior and transmitted by fellow servants to the servant injured is the order of the superior and it is immaterial that communication thereof was not direct.
    Error to common pleas court.
    
      
      T. E. Powell, for plaintiff in error.
    
      Outhwcdte, Linn & Thurman, for defendant in error:
    Contributory negligence, Van Duzen Gas & Gas Eng. Co. v. Schelies, 61 Ohio St. 298 [55 N. E. Rep. 998] ; Baltimore & O. By. v. McClellan, 69 Ohio St. 142 [68 N. E. Rep. 816] ; Cincinnati Gas <& Elec. Co. v. Johnston, 76 Ohio St. 119 [81 N. E. Rep. 155]; Pennsylvania Co. v. McCurdy, 66 Ohio St. 118 [63 N. E. Rep. 585] ; India Rubber Co. v. Tobin, 13-23 O. C. C. 653 (3 N. S. 59) ; Cleveland v. Wolf, 25 O. C. C. 406 (2 N. S. 126) ; Davies v. Griffith, 11 Dec. Re. 495 (27 Bull. 180) ;■ 1 Labatt, Mas. & Serv. 639; Cincinnati Si. By. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276]; Geiselman v. Scott, 25 Ohio St. 86; Baltimore & O. By. v. Whittaker, 24 Ohio St. 642; Lake Shore & M. S. Ey. v. Callahan, 25 O. C. C. 115 (2 N. S. 326).
    Proximate cause of injury was the negligent act of fellow servant, Kelley Island Lime (& Trans. Co. v. Pachuta, 69 Ohio St. 468 [69 N. E. Rep. 988; 100 Am. St. Rep. 706]; Lake Shore & M. S. By. v. Knittal, 33 Ohio St. 468.
   ALLREAD, J.

William J. Stubbins brought suit for personal injury and was nonsuited at the close of his testiniony.

The negligence charged against the defendant is the failure to have the fire clay spout and the mud joint employed to convey molten metal from the furnace to the ladle, thoroughly dried before use.

The evidence shows that Stubbins was employed as second furnace helper and put to work under a foreman. It was the duty of Stubbins and the other helpers upon order from the foreman to tap the furnace containing the molten iron, and then, after waiting until a portion of the metal was in the ladle and upon an order or signal from the foreman to put in the •stock of manganese and silicon. This process from the time the furnace was tapped until the metal was all in the ladle usually occupied about two minutes.

The evidence tended to show that Stubbins belonged to the night shift, came on duty about 6:00 P. M., and was at once ordered to help tap the furnace and then a little later to put in the stock of manganese and silicon. The spout was prepared by the day shift and put in place and connected by the mud joint. The workmen were delayed by the operators of the crane and the spout and mud joint were not completed until late in the afternoon and too late to be thoroughly dried out.

It does not appear that Stubbins knew of the defective condition at the time he went on duty. The testimony shows that the presence of dampness in the mud joint' and spout will generate steam as the molten metal passes, causing explosion. Plaintiff testifies that he was experienced in the business and knew the dangers connected therewith.

Plaintiff testifies that when the furnace was tapped and the molten iron first struck the mud joint, there was a puff of steam and flame and that this continued, throwing out sparks and particles of metal as the molten mass passed down the spout. He and a fellow helper, to wit, Harry Kirby, testify that there was a great puff of steam and flame that went up to the roof, but the plaintiff is not clear whether this occurred at the start or after he had gone down to put in the stock. The plaintiff also testifies that after the furnace was tapped he took his position some ten feet distant from the spout and in a place of safety. He awaited orders from the foreman. He saw the steam and flame when the metal first struck the spout. Plaintiff testifies that in a.few seconds, or perhaps a minute, after the furnace was tapped, an order was received from the foreman to put in the stock, and that in pursuance of this order he went down and was in the act of putting in the stock when we was injured by the flame and flying particles of metal. Kirby, a fellow helper, testifies that the order was received from the foreman but subsequently qualifies this by saying that the order was given to the helpers on the other side of the spout and that the witness and Stubbins received the order from those workmen. He indicates, however, that the order was intendéd and regarded as an order to all the helpers. We do not think, therefore, that it makes any material difference ^whether the order was direct or received through the other workmen.

The fact that the fire clay lining of the spout and the mud joint connection was prepared by fellow servants does not in our1 opinion relieve the master. Under Gen. Code 6242, the duty to make the place and appliances reasonably safe rested upon the master and could not be delegated.

Counsel for defendant in error insist that the apparent and obvious danger of complying with the second order of the foreman raises such an inference of contributory negligence as to bar recovery. Citing, Baltimore & O. Ry. v. McClellan, 69 Ohio St. 142 [68 N. E. Rep. 816]. They point particularly to the testimony of the plaintiff as to the indications of danger when the molten metal first came upon the mud joint and spout and insist that a reasonably prudent man would under those circumstances have refused to execute the order. In partial explanation of the plaintiff’s course, he testifies that there is often more or less steam and flame when the molten iron .first strikes the mud joint and that this of itself did not necessarily indicate real danger. There is, however,, no doubt from the actual situation appearing in evidence but that the apparent danger was of such a character as to constitute contributory negligence, except for the influence of the special order.

The principle governing in the' case of a special order from a superior servant is laid down in the case of Van Duzen Gas & Gasoline Engine Co. v. Schelies, 61 Ohio St. 298 [55 N. E. Rep. 998], in the opinion as follows:

“There is mueh reason in the rule that allows a favorable construction to be placed on the act of the servant done in obedience to the order of his superior, though involving danger. Obedience to orders given by a master becomes a habit with the servant. He obeys without much questioning the prudence of the order. It is expected that he will do so, and without such obedience the business of the master could not be successfully conducted. It is' then both reasonable and proper that the master should be held to a reasonable responsibility for-what he orders his servants to do; and the conduct of a servant in obeying an order, under sucb circumstanced, should not be too closely criticized by courts in administering the law. Whilst the law will not excuse the servant, where the thing ordered is plainly and manifestly perilous, it will do so where a man of ordinary prudence and care would, under the circumstances, have obeyed the order, although involving danger. A servant has the right, and is expected, to rely somewhat on the superior knowledge and skill of one placed in authority over him. ”' .

Counsel for defendant seek to differentiate the Van Duzen case from the one at bar by the fact that the servant there had at first objected to the danger, also by the fact that the servant had performed the work on former occasions with safety, and also that the danger there was less obvious and apparent than here. A careful reading of the syllabus and opinion in the case cited does not indicate that these facts are controlling. The whole question is one for the jury. This is clearly indicated by the first, second and third syllabi. In the ease of Cincinnati Gas & Electric Co. v. Johnston, 76 Ohio St. 119 [81 N. E. Rep. 155], the Van Duzen case is distinguished and held not to apply to the case of an experienced employe in respect to the ordinary risks of his employment, although the injury resulted by reason of an insufficient crew. The risk incident to the insufficiency of the crew it was held was assumed by the plaintiff in accepting and continuing the employment.

The present case does not, however, fall within the limitation of the distinction but is controlled in our opinion by the original ease.

The servant here had no knowledge of the defective condition of the spout and mud joint. He had- a right to presume that the master had done his duty to act upon' that presumption. Stubbins came on duty and was at once ordered to tap the furnace. This he did and awaited further orders. He was not bound to suspect and did not in fact suspect the danger. The risk was not incident to the' ordinary and careful management of the business of the master but was due to a latent defect .arising from the negligence of the master and was not therefore one assumed by the servant.

,The first intimation or suspicion of danger upon the part of the plaintiff was the issuing of steam and flame when the metal first struck tlie mud’ joint and spout. In considering the circumstances, it must be noted that up to this point Stubbins was in no wise negligent and that the defect was due to the negligence of the defendant and was within the defendant’s knowledge. It was, therefore, a sudden emergency, and the plaintiff was called upon to exercise judgment. He chose to obey the special order of the foreman. The question whether the judgment so exercised was such as prudent and careful persons in the same situation are .accustomed to exercise was one for the jury. Pennsylvania Ry. v. Snyder, 55 Ohio St. 342 [45 N. E. Rep. 559; 60 Am. St. Rep. 700].

We are of opinion, therefore,_ that the court erred in directing the nonsuit..

Judgment reversed and cause remanded for a new trial.

Dust in and Ferneding, JJ., concur..  