
    Patrick O’Leary, Respondent, v. The Buffalo Union Furnace Company, Appellant.
    
      Negligence — injuip resulting from, an explosion in a blast furnace throwing out burning matter — cha/rge as to the impi'oper operation of the furnace as distinguished from the promulgation of rules, etc., incident thereto — what facts do not establish improper operation —duty of the jury to disregard the plaintiff's testi- ■ many if they believed previous inconsistent testimony given by him to be true.
    
    In an action brought to recover damages for'personal injuries sustained by the •plaintiff while in the defendant’s employ, it appeared that the defendant operated a blast furnáce; that ore and limestone were fed into the furnace from the top and were1 fused by a fire located at the bottom,, the heat-of which was increased by a hot air blast; that very frequently ore and fuel would cling to ■the sides of the furnace and that, on some occasions, such “hanging” would continúe for such a period of time that there would be considerable space • between the molten material and the hanging raw mass; that on these occasions when the hanging mass fell an explosion would result which would be Severe enough to' throw cinders and burning matter through the explosion ' doors of the furnace for some distance; that it was one of these explosions which caúsed the1 injuries to the plaintiff.
    The plaintiff in liis complaint charged that his injuries were “ due to the negligence of this defendant in not working said, furnace in a reasonably safe and .proper manner, and thereby causing great and- unusual quantities of charcoal, molten iron, flame, and other highly heated substances to be thrown therefrom, in not having said furnace properly and sufficiently equipped with reasonably safe and suitable appliances at the time of said accident.” These allegations, especially when interpreted, in the light of the other charges contained in the-complaint, related to the mode of operation of the furnace itself as distinguished from an alleged failure to exercise reasonable care in matters connected with the operation proper :of the' furnace, such as the promulgation of rules.
    In charging the jury the trial judge stated: “The plaintiff: claims that his injury was received * *. * by reason of the negligence on the part of the defendant in operating the furnace near where.he was working.”" And again: “It is further claimed on the part of the defendant that there is no" way of ascertain- • ing exactly when, these slips are to take place, and there is no way .of preventing a furnace of this character from hanging at •■certain times, ,and that this •furnace was operated, during that day as a furnace should be operated.. That is/ it was operated properly so far as any human being could operate the same.’-'
    At the close of.the charge defendant’s counsel stated: “Your Honor stated that the plaintiff ¡claimed,that the injury was due to "the negligence of the 1 defendant in operating the furnace. I desire to except to the submission to the jury the question of the negligence of the defendant in the operation of the furnace.” Nothing was said by the trial judge in-.response to this exception.
    
      
      Held, that in the light of plaintiff’s complaint these statements upon the part of the court in its charge might be very readily understood by the jury as submitting to them the question whether the defendant did not improperly and negligently operate this furnace, aside from any alleged negligence in connection with the promulgation of rules or other matters merely incidental to the immediate and mechanical operation of the furnace, particularly as the court said nothing to rebut or correct this understanding when the defendant’s counsel took his exception;
    That there was not sufficient evidence upon which the jury could say that-the defendant was negligent in constructing and feeding its furnace, or that it unreasonably failed to take any precautions against or suffered to exist and continue dangers and risks in that respect not reasonably incidental to the business in hand.
    It appeared that the plaintiff, upon the trial of another case arising out of the same explosion, testified that he had seen similar explosions and emissions of cinders and heated material a great many times before the accident, while, when sworn upon the present trial, he denied absolutely all knowledge of any previous explosions.
    
      Held, that the defendant was entitled to have the court charge: “If the jury believe the testimony given by O’Leary in the Bannon case, that he had seen the flame and sparks and stuff come from out of these doors (referring to the explosion doors) a good many times, then that -they must ignore his testimony in this case that he had never seen the flames and sparks come from out the explosion doors.”
    Appeal by the defendant, The Buffalo Union Furnace Company, from a judgment of the County Court of Erie county in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 24th day of June, 1904, upon the verdict of a jury for $500, .and also from an order entered in said clerk’s office on the 24th day of June, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      Hubert C. Minard and Clinton B. Gibbs, for the appellant.
    
      George H. Kennedy, for the respondent.
   Hiscock, J.:

While plaintiff was at work for the defendant some distance from one of its furnaces an explosion occurred therein which threw out cinders and burning matter. Some of this struck and burned the plaintiff and he brought this action to recover damages therefor. He obtained a verdict upon his claim, the propriety of which is challenged by the - appellant because- of various errors alleged to have been committed by the trial judge. We think that the contention of the defendant is well founded in some respects, and that the judgment must be reversed and a new trial had.

The defendant was the owner and operator of three furnaces of which one only is involved. ■ This one was about sixty feet ’high and about thirteen feet in diameter on the inside. In a general way the ore and limestone to be .melted and the charcoal wéye fed ip to the furnace at its top and the fire and heat by which the raw-material . was melted -and fused was located at the bottom. For the purpose of increasing the heat a hot-air blast was fed into the furnace at the lower part. At or near that top were explosion doors and other appliances which it is unnecessary'to describe in detail, for the purpose of allowing gosses and other material to escape and be thrown out when circumstances required.. Very frequently the ore and fuel would not move -downward through the furnace to the point of melting and fusion with perfect regularity and continuity of movement but would cling to the sides of the furnace. In the great majority, of cases this hanging would be for only a very -brief period and would produce no trouble of any consequence. Sometimes, however, the hanging would continue for a longer period and there would result some considerable space between the molten and the raw material. The result of this would be that when' -the. hanging material did slip down it would, either by the temporary extinguishing of the consumption of gas constantly formed,, or by.reason.of the contact of the cold with the molten material, produce an. explosion,Avhich would b,e severe enough to throw cinders and burning material through the explosion doors for some distance into the yard. Sometimes when" one of these more serious hangings took place the man in charge of the furnace would signal for the withdrawal of the hot-air blast which would reduce the pressure below the tinfused material and make easier the slip.” It was one of these explosions which caused the expulsion of burning material which resulted in the injuries to plaintiff.

Upon the trial the plaintiff’s efforts were principally deVoted to charging the defendant with negligence, because it had not adopted some method of giving warning to employees who were liable to be burned when one of these explosions occurred, and, second, because it had not explained to him that this danger existed in connection with the work which he was doing.

In addition to denying any negligence upon its part, defendant very strenuously urged that plaintiff, had so long been at work around the furnaces that he was to be charged with knowledge that these explosions were liable to occur and 5f all of the risks which were inherent to the business in which he was engaged by reason thereof. He sought to escape any such responsibility by denying all knowledge, information and notice acquired during the many months of employment by the defendant by which he might be charged with such responsibility.

The evidence upon these issues was sufficiently close and their solution by the jrn-y in plaintiff’s favor sufficiently subject to doubt so that defendant was clearly entitled to have the case submitted free from any improper burdens upon it and guarded against.any unjustifiable inferences or conclusions by the jury. We think that the learned trial judge did not satisfy these requirements and failed to enunciate certain rules- for the guidance of the jury in such a clear and certain form as was due to the defendant.

Amongst other things, the plaintiff in his.complaint charged that his injuries were “due to.the negligence of this defendant in not working said furnace in a reasonably safe and proper manner, and thereby causing great and unusual quantities of charcoal, molten iron, flame and other highly heated substances to be thrown therefrom, in not having said furnace properly and sufficiently equipped with reasonably safé and suitable appliances at the time of said accident.” These allegations, especially when interpreted in the light of the other charges contained in the complaint, relate to the mode of operation of the furnace itself as distinguished from an alleged failure to exercise reasonable care in matters connected with the operation proper of the furnace, such as the promulgation of rules. In charging the jury the trial judge stated: “The plaintiff claims that his injury was received * * *„ by reason of the negligence on the part of the defendant in operating the furnace near where he was working.” And again : “ It is further claimed on the part of the defendant that there is no way of ascertaining exactly when these slips are to take place, ai®l there is no way of preventing a furnace of this character from hanging at certain times, and that this furnace was operated during that day as a furnace should be operated. That is, it'was operated properly so far as any human being could operate the same.” At the- close, of the charge defendant’s counsel stated: “Your Honor stated that the plaintiff claimed that the injury was due to the negligence of the defendant in operating the furnace. I desire to except to the submission to the jury, the question of the negligence of the defendant in the operation of the furnace.” Nothing was said by the trial jiidge in response to this exception. We think that in the'light of plaintiff’s complaint these statements upon the part of the court in its charge might be very readily understood by the jury as submitting tó them the question whether the defendant did not improperly and negligently operate this furnace, aside from -any alleged negligence in connection with the promulgation of rules or other matters merely incidental to the immediate and mechanical operation of the furnace. < ■ •'

This might be the-more readily understood by the jury from the fact that, when defendant’s counsel took exceptions based upon this theory, the.trial judge said nothing to' rebut or correct this ■ understanding. -

We think that there was no sufficient evidence upon which the jury could say that the defendant was thus negligent in constructing and feeding its furnace, or that it unreasonably failed to take any precautions against or suffered to exist and continue dangers -and risks in that respect not’ reasonably incidental to the business in hand.

It appears that another case springing out of this same explosion had been tried against' the..defendant and that plaintiff had been sworn as a witness therein. The stenographer who took the evidence, upon that trial swore that amongst other things the present plaintiff upon that trial in response to the question, “ And you have seen the ñame, sparks and stuff co'me out of' those doors a good ■many times, haven’t you?” answered, “ Yes,” and that he gave other' evidence upon the subject of his knowledge of the occurrences of these explosions, some in favor of arid some against the present defendant. Upon the present trial the plaintiff, in view of the exigencies of his case- felt compelled to deny absolutely and broadly any knowledge of explosions and emissions of cinders and lieated material such as caused his accident, thereby disputing the inférences to be drawn from other evidence given in behalf of the defendant. - Under these circumstances defendant’s counsel asked the court to charge : “ If the jury believe the testimony given by O’Leary in the Bannon case that he had seen the flapie and sparks and stuff come from out of these doors (referring to the explosion doors) a good many times then that they must ignore his testimony in this case that he had never seen the flames and sparks come from out the explosion doors.” This the court refused to do, and we are unable to see why such refusal was not error. It will be noted that the request was not to the effect that if O’Leary upon the prior trial testified to such knowledge the jury should disregard his evidence to the contrary upon the present trial, and which request might have been 'properly refused, for it would then rest with the jury to determine whether O’Leary testified truly upon the former trial or upon the present trial. ' But the request to disregard O’Leary’s testimony upon the present trial is based upon the assumption that upon the former trial he testified truly to what he knew, and if the jury should believe to be true the testimony given by him upon the first trial that he had seen these emissions and explosions we fail to see how it could then believe his present testimony that he never had seen them. In other words, if he told the truth when he stated that he had knowledge, manifestly he could not be telling the truth when he denied such knowledge.

Various other exceptions are urged in behalf of the defendant, which we do not deem it necessary to consider. As stated, we feel1 that in view of the doubts cast upon the credibility of essential testimony given in behalf of plaintiff, the defendant wras entitled to have a, very plain definition of its rights "upon the submission to the jury, and that in the respects already referred to it was deprived of these rights to such an extent as to entitle it to a new trial.

AH concurred ; McLennan, P. J., in result only.

Judgment and order reversed and new trial ordered, with costs-to the appellant to abide event.  