
    Daniel Crowell, as Administrator, etc., App’lt, v. Howard Thomas, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 16, 1895.)
    
    1. Master and servant—ITEaLiG-ENCE.
    The master is bound to take heed that he does not, through his want of care, expose his servant to unnecessary risks or danger, either in the character of the tools with which he supplies him, or the place in which he requires him to operate.
    
      2. Same—Concurrent negligence.
    Where, even though the negligence o£ the co-employes contributed to the accident, it is done in conjunction with the negligence of the master himself, through his alter ego, and without which the accident, would not have occurred, the master is liable therefor.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.
    
      Charles Van Voorhis, for pl’ff; . Walter 8. Hubbell, for def’t.
   Ward, J.

The deceased, Elizabeth Crowell, a girl of eighteen years of age, was employed in the canning factory of the defendant in the village of Eairport, Monroe county, in the summer of 1892. She had worked in the factory the year before a short time, earning $1.25. In June, 1892, she worked a couple of weeks, and again about a week before the 9th of August, at which time she was fatally scalded, in consequence of an explosion of a barrel in the factory caused by steam. The business of the factory was canning fruit of various kinds. The duties "of tho deceased were to work at a table, handle, cleanse the fruit, pour syrup upon it, and assist in the canning. The barrel referred to wa§ stationed in a large room, where the girls and women employed in the factory were at work. ■ It was placed upon a table, and the top of the barrel was about seven feet high. It was an ordinary' barrel, with iron hoops, and not made specifically for the purpose for which it was used. From this barrel hot and cold water was taken, for the use of the factory in canning the fruit, as needed. The water was taken from an ordinary faucet in tho lower part of tho barrel. Two pipes were connected with this barrel, one a cold-water pipe and the other a steam pipe. These pipes entered the barrel from the top, and at each pipe, at a point just above the head of the barrel, was a valve, by means of which the water or steam could be turned on or shut off. The steam pipe where it entered the barrel was a three-quarter inch pipe. On the top of the barrel, and behind the two pipes, was a vent pipe an inch in diameter, and extending above the top of the barrel five or six inches. It was put there to allow the steam to escape from the barrel. The steam from the steam pipe communicated directly with the water in the barrel. There was no steam gouge at the barrel, so that you could tell how many pounds of steam there were in the barrel, and the only means of escape of steam was through the pipe above specified. An expert witness testified, in effect, that this barrel would hold about fifteen pounds to the square inch before bursting. The fireman of the factory testified that at the time of the accident he had on about seventy pounds of steam. The. steam pipe to the barrel was attached to a main pipe or feeder, that conveyed the steam directly from the boiler. The expert testified as follows:

“ Q. Gan you tell this jury how much pressure a common whisky barrel will hold of steam before it bursts ? How much to the square inch? A. .1 shouldn’t think it would exceed fifteen pounds. Q. Will you tell the jury on a common whisky barrel what the pressure would be of seventy pounds of steam to the square inch, coming from a steam boiler. A. Fifteen tons. The Court; Q. Will it be the same to the square inch on the barrel as in the boiler? A. Yes, sir."

James Burlinghame was the defendant’s superintendent at the factory, having full charge of the same, employing and discharging the workmen, and directing the whole operations of the factory, and there was evidence upon which the jury could find that in the management of the factory he was the alter ego of the defendant. He had had charge of it for several years; had been the owner of it prior to the ownership of it by the defendant. He was daily on duty at the factory, and appeared to be entirely familiar with its operation. His brother, Llewellyn Burlinghame, was an employe in the factory, and his principal duty was to take charge of this barrel, manipulate the steam connected with it, and take the water from it as needed. One witness says the girls and women did not draw the water from the faucet. “Llewellyn used to do that mostly. He most always attended the barrel. I never saw any woman draw hot water through the faucet before. That wasn’t our business.” This was said with reference to the fact of the deceased drawing the hot water on that morning, to which we shall refer hereafter. The evidence does not disclose that prior to the morning of the accident the deceased had anything to do with the barrel, or had any acquaintance with its use, or knew how the steam was communicated to or operated in the barrel, or what protection there existed against accident from the use of steam in the barrel. The steam had not been used in this barrel, until the morning of the accident, that season, except early in July, on one occasion, and the evidence tended to show that the deceased had no knowledge in regard to that transaction. The engineer of the factory and the brother having charge of the barrel had discovered that the cold water ran out of the escape pipe on account of the presiure, and to obviate this difficulty the engineer whittled out a plug to fill this escape pipe, and inserted the plug in the pipe about the 19th of July. This plug extended above the top of the pipe four or five inches. One witness swears that he saw the plug in the pipe a week or two before the accident. Another witness swears that while standing on the floor you could plainly see the plug; that it extended above, the barrel, so that you could see it plainly. Another witness testified that, before the plug was put in, cold water that was forced out by fhe pressure could be plainly seen, and also it could be seen that the water was not forced out after the plug was put in. The engineer testified that he cautioned the brother not to permit the plug to be in the pipe when the steam was putin the barrel. After the explosion of the barrel, and injury to the deceased, the plug was found in the escape pipe, establishing the fact that at the time of the explosion there was no escape of the steam that was being forced into this barrel. On the morning of the accident, and before the deceased went to work, and while the brother was at the barrel, the superintendent appeared, and directed the brother to go upstairs, and attend to other business, saying that he would attend to the barrel. The superintendent himself turned the steam on the barrel, and directed the deceased to attend to the faucet, and take the hot water to the table as needed. . She obeyed, and was engaged in this work when the explosion occurred that destroyed her life. The head of the barrel blew out, and she was scalded to death. There was no coil or pipe passing through the cold water in the barrel through which the steam could pass; a familiar contrivance for heating water. No caution was given to the deceased by the superintendent as to any risk or danger in her working around this barrel and operating this faucet. A very slight inspection of the barrel would have enabled the superintendent to have seen when hé turned this steam into the barrel, and directed the deceased to do this work, that the vent hole was closed by this plug, and there was no escape for the steam that was being put into this weak vessel; and it was for the jury to determine from the whole evidence whether he had not been guilty of negligence under the circumstances. The law governing such cases is well stated in Tissue v. Railroad Co., reported in 3 Atl. 667, by the supreme court of Pennsylvania, as follows:

“ While it is true that the master does n'ot warrant the absolute safety of those he employs to do his work, yet he is bound to take heed that he does not, through his own want of care, expos-his servants to unnecessary risks or danger, either in the character of the tools with which he supplies him, or the place in which he requires him to operate.”

See Bailey v. R., W. & O. Railroad Co., 139 N. Y. 302; 54 St. Rep. 550.

There was evidence to go to the jury upon the question whether the defendant, through his superintendent, did not understand the whole situation, the amount of steam that was liable to be forced into this barrel; the capacity of the barrel to withstand it; the means of escape, if any; whether any insnection was made of the barrel before putting, the steam into it, and putting the deceased at work there; whether it was not the duty of the superintendent to make such inspection; whether it was not negligence in having failed to do so.

The learned counsel for the defendant insists that, while the cause of the explosion was negligence, it was in consequence of the negligence of the engineer and of the brother, who were co-servants with the deceased. The difficulty with that contention is that the superintendent superseded the brother, took charge of the barrel himself, directed the deceased in her work, and was for the time being in charge of the cause of the accident. It was the superintendent that provided the unsafe and dangerous place for the deceased to work, without giving her notice of her danger. Even if the negligence of the coemployes contributed to this accident, it was done in conjunction with the negligence of the defendant himself, through his alter ego, and without which the accident would not have occurred. The defendant is therefore as liable as though he were the sole cause of the accident. Cone v. Railroad Co., 81 N. Y. 206; Booth v. Railroad Co., 73 id. 38; Brehm v. Railroad Co., 34 Barb. 256 ; Shear, and R. Neg. § 10. A master is liable for an injury to a servant caused by the concurrent negligence of the master and a fellow servant. De Weese v. Mining Co., (Mo. Sup.) 31 S. W. 110.

The exceptions taken at the trial bring up the question here considered. We are of the opinion that the case should have gone to the jury upon the question of the defendant’s negligence. A new trial should therefore be granted, with costs to abide event.

All concur.  