
    Anna Franck, as Administratrix, etc., of Carl Gustav Franck, Deceased, Respondent, v. American Tartar Company, Appellant, Impleaded with Peter M. Poulson.
    
      Negligence—injury to an employee from an explosion in a tank—proof as to defects in the tank—knowledge of the master — time to remedy defects — his duty not to continue the employee in an insecure place—the duty of inspection is imposed on the master.
    
    In an action brought to recover damages resulting from the death of the plaintiff's intestate, it appeared that the defendant used, in the process of manufacturing cream of tartar, a wooden tank twenty-two feet high and fourteen feet in diameter, suspended in the center of which was a copper cylinder two and a half feet in diameter; that the top of the cylinder was covered by a copper plate, about three feet in diameter and eight feet in circumference, which was fastened to the wooden top of the tank by wooden screws at intervals of about eight inches. The tank was filled with liquid which was heated by steam ■ ejected from two steam pipes which passed through a hole six by eight inches in the center of the copper plate. The hole was left open for the purpose of providing an outlet for the steam. During the manufacturing process, workmen stood on top of the tank for the purpose of shoveling ground argol into the hole.
    On the day of the accident, on of the regular shovelers being absent, the defendant’s foreman instructed th intestate to assist one Nelson, the other regular shoveler. Shortly before he accident, Nelson discovered that some steam was escaping from, under the edge of the copper plate and, after shutting off the steam, called the attention of the foreman to it. The foreman directed them to go ahead with the work and turned on the steam. Nelson and the intestate ■ then took up their shovels and almost immediately there was a leakage or explosion of steam and water. The copper plate tipped up, and steam and water shot out laterally from under it, and ^burned the intestate so that he subsequently died.
    There was evidence that the wooden top of the tank was rotten and that some of the wooden screws by which the copper plate was fastened thereto were loose; that the defendant knew that.the wooden top was rotten and that the screws did not hold very well therein; that the intestate had not been employed about the tank before the accident and that he did not hear the conversation between Nelson and the foreman with respect to the escaping steam.
    
      Held, that the questions of the defendant’s negligence and of the intestate’s freedom from contributory negligence were properly submitted to the jury, and that a judgment entered upon a verdict in favor of the plaintiff should be affirmed;
    That it could not be assumed, as matter of law, that the intestate could or should have known that the wooden top was rotten, or that the plate was insecurely fastened thereto, or that the slight escape of steam from the edge of the plate was an indication of approaching danger;
    That it could not be said that the act of the foreman in turning on the steam was the sole cause of the accident;
    That, in any event, the jury might say that the rotten condition of the top of the tank and the fact that the copper plate was not securely fastened thereto, were ' concurring- causes of the accident;
    That the jury might find that the defendant, in the exercise of reasonable care, should have known some time before the accident that the wooden top of the tank was rotten;
    That, in any event, having been apprised before the accident happened that the place in which the intestate was employed to work was unsafe, it was liable for continuing to offer such place to him, notwithstanding that it could not, with due diligence, have made the place safe before the accident happened.
    That the defendant could not delegate the duty of inspection, incumbent upon it, to an employee, in such a manner as to relieve itself from liability for the failure of the employee to perform properly that duty.
    Appeal by the defendant, the American Tartar Company, from a judgment'of the Supreme Court in favor of the plaintiff, bearing date the 15th day of April, 1903, and entered in the office of the clerk of the county of Kings upon thfe verdict of a jury for $6,500, and also from an order entered in said clerk’s office on the 15th day ' of April, 1903, denying the said defendant’s motion for a new trial made upon the minutes..
    
      
      H. Snowden Marshall, for the appellant.
    
      J. Aspinwall Hodge [Robert H. Ernest with him on the brief], for the respondent.
   Jenks, J. :

The action is for breach of a master’s duty to his servant. The master is a manufacturer of cream of tartar. It used in the process a wooden tank twenty-two feet high and fourteen feet in diameter. Suspended in the center of the tank was a copper cylinder about two and one-half feet in diameter. Two steam pipes which ran through the cylinder ejected steam at the lower ends, and thereby both agitated and boiled the material put into the tank. Heat was also furnished by a coil of steam pipe at the bottom of the tank. The top of the cylinder was covered by a copper plate about three feet in diameter and eight feet in circumference, fastened down into the wooden top of the tank by wooden screws at intervals of about eight inches. In the center of this copper plate was a hole about six by eight inches, through which the said two steam pipes passed. This was left open for the steam to blow off. The tank was filled with a liquid, and, before and after the steam was turned on, workmen stood on top of the tank to shovel into the hole ground argol, which was placed on the top of the tank surrounding the hole. The tank was heated to the boiling point. The intestate, a ^grinder of argols, was asked on the day of the accident, by defendant’s foreman, to take the place of an absent shoveler and to aid Nelson, the other regular shoveler on the top of the tank. Shortly before the accident Nelson saw that some steam was escaping from the edge of the copper plate at one side of it. He called the attention of the foreman to it after closing down the steam. The foreman answered: “ To hell with it. * * * Go ahead.” The foreman took hold of the steam valve that lets in the steam, and Nelson and the intestate took up their shovels. It is clear enough that the foreman then turned on the steam. Almost immediately there was a leakage or explosion of steam or water. The copper plate tipped right up, and the steam and water shot out laterally under the copper plate, and burned the intestate so that he subsequently died.

The plaintiff insists that if the copper plate had been properly fastened down, it would have resisted the pressure (and pressure upon the plate was to he expected) so that the steam, water or liquid would have taken the outlet provided for it, namely, the hole in the plate, and the intestate would have been unscathed; A breach of duty alleged is the failure of the master to provide a safe place for his workman. The proposition is that the place was dangerous for the following reasons, which are sustainable by the evidence: Wood alternately wet and dry rbts quicker than wood either continuously wet or dry. This wooden top was so rotten that sometime before the day of the accident the shoveler Nelson easily pushed the full length of his penknife blade, two inches and a half, down into _the wood. The plate was fastened by wooden screws, some of them being loose on one side of that plate. There is evidence of the practice of shifting the screw beds in order that the fastenings might be inore secure. The plate was screwed into the surface of the wood, and not countersunk, so that naturally the shovels in use came in contact with the edge of the plate. So far as the question of the knowledge of the master is concerned, even the defendant’s .superintendent testifies that the wooden top was fairly good, meaning thereby that “ after saturation with water and steam daily for over a year—two years, perhaps •—it would be soggy and not quite so strong 'as when first put in,” and that the screws would not hold so Well. Nelson,, the shoveler, who made the test with his penknife, testifies that he had told the defendant’s foreman that the wood was rotten.

The learned counsel for the appellant insists that the softness of the top of the wood does not figure in the case, for the reason that the accident was not due to the giving way of the wood, but to the fact that the screws of the plate were not driven down into the wood. There is some warrant for this contention in certain statements of the witness Nelson on cross-examination. But the witness had testified on the direct: The screws were not sticking up that much,but loose, so that the head of the screw was above the copper plate except on one side.” And he had corrected his statements on his redirect as follows: “ Those screws were above the copper plate when I looked at them, onereighth of an inch; xyou might say the head of the screw was standing on top of the — I didn’t mean to say to the counsel on the other side that the screws were standing up outside of the copper plate like that.”

I cannot agree with the learned counsel that the act of Poulson in turning on the steam was the sole cause of the accident. The master was bound to furnish a place reasonably safe under the usual conditions that attended when the shovelers were at work. The turning on of the steam was a usual circumstance. If the wood had been sound, and the plate sufficiently fastened, or perhaps if either of these, circumstances had appeared, presumably the turning on of the steam would have resulted in no accident, for that was but a usual act. If the plate did not hold under such circumstances can it be said that the ordinary act of turning the steam was the sole cause of the accident ? Could not the jury say that in any , event the defects in question were concurrent in the accident ? The learned counsel, while stating that "he can find no direct authority in this State for the proposition, contends that the master, after discovery, is entitled to a reasonable time to make repairs. So far as this proposition is in the ease, it may be said that the jury were entitled to find that the defendant ought, in the exercise of reasonable care, to have known sometime before this accident that the wooden top of the vat was rotten. But in any event, it surely is not the law that when the master is apprised of a defective place, he is not liable if he continues to offer it to the servant provided an accident happens before he can, with due diligence, make the place safe. I know of no such interval of immunity.

The appellant relies upon Koehler v. New York Steam Co. (84 App. Div. 221) for the proposition that if the fault of the master lay in inspection the master is not liable. Notwithstanding the language of the court in Byrnes v. N. Y., L. E. & W. R. R. Co. (113 N. Y. 256) I am of opinion that under earlier and later authorities it is well settled that the master cannot absolve himself, ,so far as the duty of inspection is concerned, by showing that he provided for an inspection by servants generally competent, or that an inspection was made; or, in other words, that the negligence of a servant competent to inspect, and intrusted with the duty of inspection, cannot be attributed to the master. I think that the rule "and the reason for it are well stated by Tract, J., in Durkin v. Sharp (88 N. Y. 225) : “ The inspection of the track was a duty of the master. Had such duty been carelessly and negligently performed, even by a competent inspector, the master would still be liable. To excuse him from liability the track must have been carefully inspected by a competent inspector.” In Byrne v. Eastmans Co. of N. Y. (163 N. Y. 461, 465) the court, per Landon, J.,.say : “ It was the defendant’s duty to furnish to its employees good and suitable appliances and to use reasonable care, to kee p them so: (Cone v. Del., L. & W. R. R. Co., 81 N. Y. 206 ; Probst v. Delamater, 100 ib. 266 ; Doing v. N. Y., Ontario & W. R. Co., 151 ib. 579.) Reasonable care involves proper inspection, and negligence in respect of it, in such cases as this, is the negligence of the master, and none the less so when the inspection is committed to a servant.(Durkin v. Sharp, 88 N. Y. 225 ; Bailey v. Rome, W. & O. R. R. Co., 139 ib. 302 ; Hankins v. N. Y., L. Erie & W. R. R. Co., 142 ib. 416 ; Fuller v. Jewett, 80 ib. 46.)” In Eaton v. N. Y. C. & H. R. R. R. Co. (163 N. Y. 391), the court, per Cullen, J., say : “ There can be no question that, apart from the rule quoted, inspectors are not fellow-servants of the trainmen so as to relieve a railroad company from liability to the latter for. injuries occasioned by the negligence of' the former. The duty which the master, as such, owes to liis employees, of exercising reasonable care, that the appliances furnished them should be safe and suitable, cannot be delegated so as to relieve the master from responsibility, and so far as it is performed by others, the negligence of any servant, agent or employee in the work is deemed not the negligence of a fellow-servant, but that of the master himself. '(Fuller v. Jewett, 80 N. Y. 46 ; Bailey v. R., W. & O. R. R. Co., 139 N. Y. 302.) In the last case it is said.: The master is never exonerated by the negligent omission of subordinates to' perform duties which are imposed upon him'in his character as master, resulting in injury to other employees.’ Inspection to discover whether an appliance is defective is as much a part of the work of furnishing safe appliances as reparation after the defect is discovered, and in the Bailey case the negligence alleged was failure to inspect.” In Simone v. Kirk (173 N. Y. 7), the court, per Vann, J., say: “It is the duty of a master in employing servants to use reasonable care to provide them with proper appliances and a safe place to work, and this duty is so firmly fastened upon him by law that he cannot delegate it without liability for the negligence of the one to whom he intrusts it. The duty of using reasonable care in inspecting the place where ¡servants are set at work is also the master’s duty which he must prop-erly discharge at his peril, either personally or through another.”

Of course, if the duty, although devolved, still be that of the master, the neglect of him who discharges the duty is the neglect of the master. For it would be anomalous and illogical to hold the master, who personally inspected, for neglect, and yet free him provided the .act of inspection was vicarious. This rule, of course, may well be -subject to the qualifications suggested in the opinion of Cullen, J., in McGuire v. Bell Telephone Co. (167 N. Y. 208, 212), to the effect that the application of this rule may depend on the nature •of the work and the manner of its conduct.” The rule and its qualification were considered by this court in Dittman v. Edison El. Illuminating Co. (87 App. Div. 68).

The intestate was usually employed in the grinding of argols; he liad never been at this tank in any capacity when it was used for boiling purposes, and he was called in this day as a substitute for an absent shoveler by the defendant foreman. There is evidence that he could not have heard the conversation between Nelson and the foreman that preceded the accident. It is not to be ¡assumed as matter of law that he could have known or ought to have known that the wood was rotten or that the plate was insecurely fastened thereon, or that the slight escape of steam from the edge of the plate was an indication of approaching danger, though it was clear enough to Nelson, who had been a shoveler for ¡a year and a half, or to Poulson, the foreman. I think that the question of his culpability was a question for the jury. (Finn v. Cassidy, 165 N. Y. 584, 589 ; Borgeson v. United States Projectile Co., 2 App. Div. 57.)

The judgment and order should be affirmed, with costs. ■

Judgment and order unanimously affirmed, with costs.  