
    Bridget Nichols, as Administratrix, etc., Resp’t, v. The Bush & Denslow Manufacturing Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 28, 1889.)
    
    1. Negligence—Master and servant—Liability oe master.
    The plaintiff, while in defendant’s employ, was injured by an accident resulting from an explosion, caused by a defect in a certain still used in the distillation of crude oil. The explosion was caused by the absence of a stop cock, a necessary requisite. Held, that defendant was liable.
    
      2. Same—Evidence—Competency op.
    To show the defective condition of the still in question, the evidence of another employee, and of the superintendent, that the same had existed for some time, and that it was a dangerous place, was competent.
    Appeal from a judgment entered upon a verdict of a jury, and from an order denying a motion for a new trial.
    The action was brought to recover damages sustained by reason of the death of plaintiff’s intestate. Two witnesses, one defendant’s superintendent and another a fellow-workman, testified to the defective condition of the place where the accident occurred, and that defendant’s notice had been called to the fact.
    Hascall, Clark & Vanderpool, for app’lt; Carpenter & Roderick, for resp’t.
   _ Barnard, P. J.

The defendant is a distiller of crude _ oil. In the process of distillation a large amount of gas is generated. Some of it was used for fuel, and the remainder was designed to escape into the running room, which was at all times dangerous if a lighted candle was brought there when the machinery was in operation. One of the stills needed repairs. The mechanic and the plaintiff’s intestate went into it with a candle and there was an explosion, and both men were instantly killed. The deceased intestate was not a mechanic but a common laborer, and was ordered in the still by White, the mechanic, but he had worked with White before in and about repairing the stills, but whether he had been in the habit, or ever went into the still, is not proven. It appears that gas from the other stills in use, of which there was some twelve or thirteen, will return back into the empty still in process of repair, and that this result was occasioned by the absence of a stop-cock. This result would not be occasional and doubtful, but would happen with absolute certainty. The place in which the deceased was put to work was not a safe place. A servant takes the risk of the employment, but he has the right to rely upon the performance of the master’s duty. The rule of duty is explained by the court of appeals in these words: “The rule is, that a master is bound to use all reasonable care and diligence, and caution, in providing for the safety of those in his employ, and furnishing for them for their use. on his work safe, sound and suitable tools, implements, appliances and machinery in pursuit thereof, and keeping the same in repair.” Bushby v. The N. Y., L. E. and W. R. R. Co., 107 N. Y., 374; 12 N.Y.St.Rep., 9; Benzing v. Steinway & Sons, 101 id., 547.

The master cannot delegate the performance of this duty to another, and escape liability on the ground that the neglect was the neglect of the employee and ignorance of the defendant in the instrumentality will not excuse. Ellis v. The N. Y., L. E. and W. R. R. Co., 94 N. Y., 546.

If the accident could have been prevented by the exercise of proper care, it is negligence in the master not to have avoided the danger. Contributory negligence is generally a question for the jury. If he had the right to assume the performance of his master’s duty, there is no ground upon which he can be charged with negligence on his part which contributes to the injury. He went in the still at the request of the mechanic, White. It is true that he had refused before to go in unless White went in first, but his suspicion was removed by the fact that on those occasions no accident happened.

The inquiry made of the witness Esdale was proper. He testified for the entire two years that he had worked in defendant’s distillery, there was always gas in the running room. The room connected with the still in question. The connection with McCormick was proper. He was defendant’s superintendent, and in respect to the question at issue was the master.

The judgment therefore is supported by evidence, which makes out a liability against the master, and should therefore be affirmed, with costs.

Peatt, J., concurs. _  