
    Frederick L. Russell, an Infant, etc., v. The New Jersey Steamboat Co. and The New York Oxygen Co.
    (Supreme Court—Albany Circuit,
    December, 1894.)
    Where an action is brought against two defendants to charge them, one for negligence in shipping a dangerous article without giving notice of its character, and the other for negligence in transporting such article, separate trials of all the issues should be granted.
    Hydrogen or oxygen gas is not a dangerous article or explosive burning fluid within the meaning of section 4472 of the United States Revised Statutes, forbidding the carrying of loose hay, etc., upon steamboats-carrying passengers.
    
      Action to recover damages for injuries sustained by the ■plaintiff, who was in the employ of the defendant, the New ■Jersey Steamboat Co., by the explosion of a steel cylinder containing hydrogen gas. The explosion occurred at the .People’s Line warehouse, in the city of Albany, December 6, 1893. The complaint charges that said injuries were caused in consequence of the negligence of the defendants, the New York Oxygen Co. in knowingly shipping, and the New Jersey ¡Steamboat Co. in knowingly transporting, certain steel cylin■ders containing oxygen and hydrogen gas so compressed in such cylinders as to be dangerous and liable to explode, without giving notice of their dangerous character; and for maintaining a nuisance in transporting such dangerous cylinders on a navigable river and keeping them on a public dock,
    ; street or highway in said city of Albany. A motion was made by the defendant, the New Jersey Steamboat Co., for a separate trial of all the issues pursuant to section 96J of the Code of Civil Procedure, which motion was granted on the ground that evidence tending to show knowledge on the part of the -oxygen company of the dangerous character of the contents of the cylinders might be unfavorably considered in passing ■on the question as to whether or not the steamboat company received notioe of the character of the contents of the cylinders, and that the jury might fail to discriminate between evidence affecting the steamboat company and evidence affecting the oxygen company.
    The evidence on the trial as between the plaintiff and the New Jersey Steamboat Co. tended to show that the cylinder which exploded contained hydrogen gas; that cylinders of that description had been carried on defendant’s boats for several seasons; that they were" not considered by those handling them as dangerous; that a similar accident had never happened before; that hydrogen or oxygen gas was not of itself explosive, but that when compressed in a sealed vessel to nearly the bursting point of such vessel and subjected to "an increase of temperature, the gas would attempt to expand and the vessel would explode; that there was nothing in the
    
      appearance of the cylinders to indicate the nature of their contents or that they contained compressed gas or the amount of pressure.
    Motion for a nonsuit.
    
      Countrymam, <& DuBois, for plaintiff.
    
      W. P. da R. K. Prentice and Hugh ReiWy, for defendant.
   Lajtoom, J. (orally).

If there is any liability in this case on the part of the steamboat company it arises in consequence of the statute. The steamboat company is a common carrier, and ordinarily has a right to carry the ordinary articles of merchandise. This statute (U. S. B. S. § 4472) was enacted to prevent the carrying, on steamboats carrying passengers, of loose hay, loose cotton, loose hemp, camphene, nitro-glycerine, benzine, benzole, coal oil, crude or refined petroleum, or other Wee explosive bu/rnimg fluids or Wee demgerous articles. Now, is this illuminating gas an explosive burning fluid like any one of the fluids or articles mentioned in the statute? We can all see from the testimony that it is not. Moreover, we have the testimony of Professor Nason that it is not. In one sense it is a fluid; it is not the explosive burning fluid like camphene, or like naphtha, or benzine, or benzole, or other fluids mentioned. I have taken pains to have this case proceed upon the line of exact explanation, so far as it could be had, of the quality of the article with which we are dealing, and we are enabled to see ourselves this is not a like explosive burning fluid as benzine, naphtha or the other articles mentioned. Now, is it a like dangerous article ? I think the question is whether the article with which we are dealing, namely, the illuminating gas, can be found by the jury upon the evidence to be in like manner dangerous as any of these other articles previously mentioned. We have seen from the evidence of the professor in what manner camphene, and nitro-glycerine, and benzine, and benzole, and naphtha, and the other articles are dangerous articles. They are dangerous in consequence of their inflammability. The article we are dealing with is illuminating gas, and that gas, as I have already remarked, is not per se dangerous. Taking the testimony of the professor, the gas is not dangerous in the sense that any of these articles are dangerous. The danger does not arise from the article itself, but from the use to which the article is put, namely, compressing it in a cylinder when the cylinder is not strong enough to hold it. It is the danger that arises from overcharging the cylinder beyond its strength. 'Is that danger like the danger which arises from any of the other articles? The danger does not arise in any of these other articles, as I understand it, in consequence of the weakness of the vessel which contains them, or the overcrowding them or overpressing them into that vessel. The danger arises in consequence of the element of danger which inheres in the very nature of the composition itself.

Here the element of danger does not inhere in the elements of the article itself, so that the danger that exists here is not in the article, but in the improper overcrowding of the cylinder which contains the article, and that was the act of the oxygen company.

By adding conditions which are not shown to have been added in this case, namely, escaping and mingling with air and contact with flame, this gas may be converted into an explosive gas, but I do not consider that branch of the case, because, as I say, we must proceed upon the evidence, and the evidence does not show these conditions existed here. Therefore, I think the statute does not cover this case, and I shall dismiss this complaint. I may add, although we have not had any discussion upon the subject, that-there is another ground upon which I think this complaint ought to be dismissed, and that is lack of notice to the steamboat company. The only notice it had are these printed bills upon which is written “ Oxygen.” They are falsely marked. If what I have said is true, that the article itself is not dangerous, but the manner of its compression constitutes the element of danger, then the fact that the cylinders were billed oxygen was no notice to the company of its dangerous character, as it was no notice of the overcharge of the cylinders which made the article dangerous.

I direct a dismissal of the complaint.  