
    Timothy Cadigan, Appellant, v. Glens Falls Gas and Electric Light Company, Respondent.
    Third Department,
    May 2, 1906.
    Negligence — injury by explosion of gas — when question of negligence and contributory negligence for jury.
    The plaintiff, employed in a gas works, was engaged with others in inserting a valvb in a gas main in an inclosed room in the factory. The main was opened without relieving the gas pressure or stopping the pipe with an inflated rubber bag, which is usually done in such cases. Owing either to a spark caused by the use of a chisel on the iron pipe by the foreman, or to a burning gas jet in the room above, an explosion occurred whereby the plaintiff was injured. The plaintiff, with one exception, had not engaged in similar work, and on that occasion the pressure had been shut off and a rubber bag used to stop the flow of gas when the main was opened. On appeal from a dismissal of the complaint,"
    
      Held, that the question as to whether the defendant was chargeable with negligence in ordering the work to be done with the gas pressure on and without the use of the usual rubber bag should have been left to the jury;
    That the question of contributory negligence on the part of the plaintiff in not running away when he found that the pressure was on was also for the jury;
    That as the action was under the Employers’ Liability Act, the question of assumption of risk was for the jury.
    Appeal by the plaintiff, Timothy Cadigan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of' Warren on the 8th day of December, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Warren Trial Term.
    The plaintiff, under the direction of one Moran, the general fdreman of defendant’s works, and with him and two other, men, was' taking a plug from a six-inch Y branching off from an eight-inch pipe in the basement of, the defendant’s works, and inserting a valve in place thereof,' It was the duty of the two men to lift and put the valve, which weighed about one 'hundred pounds, in place after the plug was removed; it was the duty of the plaintiff to hold a burlap bag in the pipe to prevent the escape of gas after the plug was taken out and while the valve was being inserted, and of Moran to- fit the- valve and finish the work. The eight-inch pipe connected 'the works with the main holder which supplied gas in the village. The work was being done in the basement of the building, a room about eight by eleven feet and about six feet high. The gas works were not shut down while the change was being made, and in some way an explosion occurred, threw down the walls of the building, caused a fire, and quite seriously injured the plaintiff, who brings this action to recover for such injury. He had worked for the defendant about.three and one-half years, principally upon the. streets in making connections in the open air with small pipes. He had assisted twice before in making connections somewhat similar to this in the building, but then the works were shut down so- there was no pressure to force the gas from the pipes. Immediately over the room where this work was going on was the meter room, and there was an opening of about. two feet- in the floor between the •rooms, which hole was nearly -but not qdite over the pipe where the plug Was removed and where the plaintiff was standing, and a - gas jet near' the hole was always burning in the meter room, wffh a small light, to show the quality of the gas at any time. The plaintiff knew that if gas escaped in an inclosed place and came- in contact with the flame, an explosion would result. If the pressure is turned off and the pipe opened, the, gas in the pipe naturally comes out into the open air, and the plaintiff swears he- supposed the pressure was turned off and that the burlap bag Was only being used to hold in the pipe the gas naturally remaining there and which would otherwise escape. When the superintendent .directed Moran, the general foreman, to do this work, he told him the gas must not be shut off as the amount in the tank was low, and Moran told him there were no rubber bags to put in the pipes and that with the pressure on and without the bags the work was dangerous, and the super: intendent said they could not wait, the work must be done and they must take the chance. The plaintiff was not told of the danger, or that, the pressure was still on the pipes. In making changes similar to this the pressure is usually shut off, or a small hole is drilled in the pipe, a rubber bag inserted and then expanded by the air pump so that it will fill the pipe and prevent the escape ofi gas. The evidence shows that it is probable that if either of these methods had been resorted to the accident would not have happened. It is not quite clear whether the lighted gas in the room above caused the explosion, or whether it arose from a spark caused by Moran using a chisel upon the iron pipe. The witnesses say that they saw no spark or light before they heard the explosion. The notice was se "ved" under the Employers’ Liability Act (Laws of 1902, chap. 600, § 2).
    
      J. Edward Singleton and W. L. Kiley, for the appellant
    
      J. A. Kellogg and J. H. Barker, for the respondent.
   Kellogg, J.:

The defendant owed the plaintiff a reasonably safe place in which to work, free from hidden, unexpected dangers known to the master but unknown to the servant, and by ordering this connection made with the pressure on and without the use of the usual bag, a fair question was presented whether the defendant was not negligent in discharging the duty it owed to the plaintiff. The defendant knew that the manner in which it was doing this-work was unusual and was dangerous. The serious question is whether the plaintiff knew that the pressure was on, appreciated the danger and assumed the risk. His former work had been in making connections in the open air, with small pipes, which connections usually are, and safely can be made, without turning the pressure off. From his knowledge of the business and his familiarity with the situation, did he know, or should he have known from the manner in which the work was being done, that the pressure was still on ? He swears the burlap bags were used, as he supposed, to retain in the pipe the gas which •was there and which would naturally escape even though the pressure was, turned off. Is that true ? If he had reason to believe that the pressure had been turned off, was be 'negligent in staying at the work after the discovery that such was not the fact? Here the evidence is not entirely clear. Some of it tends to show that some time elapsed between the time the plug was pulled out and the explosion. ■ Others put the explosion at about the time the plug was ptilled out. If some time elapsed after the plug was pulled out, would a reasonably prudent man throw down his bag and run, knowing that there was a light over his head which might cause an explosion, or would he deem it his duty to remain and try and hold the gas in the pipe with the burlap bag, hoping to prevent an explosion? The nonsuit cannot be sustained upon the theory that Moran, while acting as a fellow-servant, caused the explosion by producing a spark with his chisel. It is not clear that the explosion did not occur from-the gas jet above, and the fact that no spark was seen and that the workmen heard an explosion before they saw a light, was proper to be considered as to whether a spark or the gaslight caused the explosion. Besides, if the defendant was negligent in putting the plaintiff in this place, surrounded by dangers unknown and unexpected by him, it cannot shield itself by showing that the act of the fellow-servant brought about the injury which. the hidden dangers of the place made probable. It seems that these questions and the inferences to be .drawn from all the circumstances were peculiarly' for the consideration of the jury and not for the court. The Employers’ Liability Act (Laws of 1902,. chap. 600, § 3) required the question of assumption of risk to be submitted to the jury. The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.  