
    Frank Kiras, Respondent, v. The Nichols Chemical Company, Appellant.
    
      Negligence—injury resulting from an explosion of semi-liquid slag being dumped by an employee on ground in which cracks filled with water were permitted to exist.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant, a smelting company, it appeared that in the course of the business hot semi-liquid slag or dross was dumped on marshy ground adjoining the defendant’s premises; that the action of the tide was liable to cause cracks to open in the hardened slag and to expose the water, and that if the hot slag were suddenly dumped into such a crack an explosion would occur, but that it might be emptied slowly into the cracks without danger. The dumping ground was in charge of a foreman whose duty it was to direct the men where to dump and to keep the ground in good condition. On the night of the accident this foreman directed the plaintiff, who was a member of the night gang, to dump slag in a certain place, and while obeying this direction the wheel of his buggy sank into a crack, overturning the buggy and causing an explosion which seriously injured him. The crack had opened up two or three days before the accident, but the plaintiff had no knowledge of its existence, nor was it claimed, although he had been in the defendant’s employ seven or eight months, that he knew or had reason to know that an explosion would result from the sudden contact of slag with -water.
    
      Held, that a judgment in favor of the plaintiff should be affirmed;
    That the accident was caused by the failure of the defendant’s representative to keep in a reasonably safe condition the ground over which the plaintiff was obliged to pass in order to reach the place where he was to do his work;
    That the danger was not an incident of the plaintiff’s employment and did not result from the prosecution of the work.
    Appeal by the defendant, The Nichols Chemical Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 2d day of July, 1900, upon the verdict of a jury for $1,250, and also from an order, entered in said clerk’s office on the 30th day of June, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles C. Nadal [Edward P. Mowton with him on the brief], for the appellant.
    
      F. W. Catlin, for the respondent.
   Hirschberg, J.:

At the time the plaintiff received, his injury he was working for the defendant. The latter carries on the business of smelting ores at Laurel Hill, Queens county. Marshy grounds adjoining the premises are used, for the dumping of the hot, semi-liquid slag or dross which remains as a, result of the smelting process. This dumping ground, formed by the slag, had been two or three years in process of creation, being smoothed off: as it cooled and hardened, and filled up as it cracked, so> as to form a space of considerable extent, estimated at from 15Ó to 200 feet square, over which the workmen were required to wheel iron cars or “ buggies ” full of the hot 'slag and to dump them at the outer edges of the ground. The evidence shows that the action of the tide is liable to cause cracks to open in the dumping ground, especially on or near the edges, and to expose the water, and that the hot slag may be emptied slowly into such cracks without danger of explosion from contact with the water, but that if the contents -of the “ buggy ” is suddenly emptied, steam will be generated in a dangerous quantity and an explosion occur. Some of defendant’s witnesses testified that the proper course to pursue in filling the cracks was to first empty ashes into the crack before pouring in the slag. The plaintiff had been at work some seven or eight months, but it is not claimed that he knew, or had any reason to know, that a dangerous explosion would result from the sudden emptying of slag into water.

At the time of the accident the dumping ground was in charge of a foreman whose duty it was to direct the men where to dump and to keep the ground in good condition. A crack had opened up two or three days before- the accident, gradually enlarging and widening, and of the existence: of which the plaintiff: had no knowledge. Its precise location is -not clearly, established, .but there is evidence which would justify the belief that it was rather in the center of the dumping ground than at the edge. On the 27th of March, 1899, the plaintiff was working in the night gang, all night, the accident occurring before daylight, but as the day was dawning. He had been emptying his buggies away, from the direction of the crack, but at or about five o’clock he was directed by the foreman to go in the opposite direction, and on the first trip his wheel sunk into the crack, suddenly overturning and emptying his buggy, an explosion immediately following, which seriously injured him, among other ■things entirely destroying the sight of his left eye.

The learned counsel for the appellant insists that the risk which the plaintiff encountered was incident to his employment, and invokes the rule referred to in O'Connell v. Clark (22 App. Div. 466, 467), that the principle of a safe place does not apply where the prosecution of the work itself makes the place and creates its -dangers.” I think the principle does apply in this case, and under the circumstances as they must he assumed to have been found by the jury. The ground selected by the defendant was wet and subject to the constant action of the tide. This created a danger not ■obvious to the ordinary workmen, and, as the evidence indicates, ■only known to those possessing superior knowledge and skill, viz., that a dangerous explosion would result from the sudden contact of ■a large quantity of the liquid metal with water. The work which the plaintiff was required to perform was to wheel the metal from the building to and across the dumping ground, and to dump it when the end of the ground was reached. This work did not create the danger, nor in a legal sense did it make the place ” over which he was obliged to go, so as to absolve the master from the duty of exercising ordinary care to keep it safe. He was •obliged to cross this dumping ground in the dark, and the danger which threatened him was not obvious, nor would he have necessarily known the consequences of an accident had he seen the menace. 'The danger was created by the negligence of the defendant’s representative to whom was assigned the duty of keeping in a reason-ably safe condition the ground over which the plaintiff was obliged "to pass, in order to reach the place where he was to do his work. 'This was not in any sense a detail of the work, and the duty could not be delegated so as to relieve the defendant from the consequences of non-performance. The cases of overhanging rocks and banks, cited by the appellant, are not in point. There the danger is created by the workmen themselves in undermining the material. Here the crack was not created by the dumping of the slag, although it may have been formed at a place where slag had been dumped two or three years before. The crack was formed by the action of the tide, and had no connection or relation with the work in pro-gress, excepting to open up a dangerous fissure in the pathway which the workmen were obliged to travel in the dark. I know of no case where it has been held that a master owes no duty to exercise care, to some extent at least, in the discovery and avoidance of so-likely a danger, and one which would be fraught with such serious-consequences.

The principle which distinguishes this case from those where the servant assumes the risks of his employment is illustrated in Pantzar v. Tilly Foster Iron Mining Co. (99 N. Y. 368), where, as here,, the danger was caused by the action of the elements. Chief Judge-Huger said (p. 376); “ The motion ” for a nonsuit “ assumes that, the injury to the plaintiff occurred solely from a hazard incident to-the nature of the employment, and not from a cause which could have been foreseen and.guarded against by the exercise of proper-care and prudence o.n the part of the master. This, however, was. the very question which was disputed before the jury and decided by it adversely to the appellant. The defendant’s contention is based "upon the evidence showing that it is the nature of gneiss rock to-disintegrate and fall from time to time at unexpected intervals-through the action of the elements operating upon it; but it does-not follow from this fact that the master is excused from using proper-precautions to protect his workmen from danger known to the-master arising from such a cause. The very fact that the material was likely to fall upon and injure the defendant’s servants at unexpected times imposed upon defendant the duty of inspection and frequent and careful examinations, and, upon the discovery of any-indications of danger, to adopt all suitable precautions to protect its. servants from injury. The rule that the servant takes the risk of the service pre-supposes that the master has performed' the duties of' caution, care and vigilance which the law casts Upon him. (Booth v. B. & A. R. R. Co., 73 N. Y. 38.) It is those risks alone which cannot be obviated by the adoption of reasonable measures of precaution by the master that the servant assumes.” (See, also, Buckley v. Port Henry Iron Ore Co., 17 N. Y. St. Repr. 436 ; affd., 117 N. Y. 645; Cunningham v. Sicilian Asphalt Paving Co., 49 App. Div. 380; Vanesse v. Catsburg Coal Co., 159 Penn. St. 403.)

“ It may, we think,” said the Court of Appeals in McGovern v. C. V. R. R. Co. (123 N. Y. 280, 287), “ be laid down as a general rule that the dangers connected with such a business,” that is, employments either dangerous in themselves or made so by the carelessness of those who carry them on, “ which are unavoidable, after the exercise by the master of proper care and precaution in guarding against them, are risks incident to the employment and are assumed by those who consent to accept employment under such circumstances. But those dangers, which are known and can be mitigated or avoided by the exercise of reasonable care and precaution on the part of those carrying on the business, and injuries from which happen through neglect to exercise such care, are not incident to the business, and the master is generally liable for damages occurring therefrom.”

The injury in this case came from the neglect to exercise care in avoiding a danger known to the master and which could have been easily avoided, and which affected a place furnished to the servant to work in. For such neglect the master is liable under settledand well-established rules. The case was submitted to the jury in a charge remarkably favorable to the defendant, and containing no errors available to it; the damages are not claimed to be excessive, and the judgment and order should be affirmed.

Judgment and order unanimously affirmed, with costs.  