
    Flora Belle Dyer, as Administratrix, etc., of Charles E. Dyer, Deceased, Appellant, v. William H. Brown and Others, Respondents.
    
      Negligence — injury to a molder from pouring molten iron into wet or rusty holes, in defective castings — duty of the master to examine the holes—failure of the molder to do so.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff, a molder employed by the defendants, while he was- pouring molten iron into holes in defective castings, in consequence of an explosion due to the presence of rust or water in the holes, it appeared that the defective castings had, by direction of one of the defendants, been placed some forty feet distant from where the plaintiff was accustomed to work, at a place where the defendants knew or should have known that a portion of the roof was in a leaky condition; that at the time the plaintiff was directed to assist in filling the holes the work of placing the castings in readiness for the operation had been completed under the direction of the defendants’ foreman; that no means were taken to ascertain whether there was rust or water in the holes, although the defendants knew that, if there was, an explosion would be likely to result when the molten iron was poured into them. Evidence was also given that the plaintiff, who had had about fourteen years’ experience as a molder, had never done or witnessed the doing of work of that character, and that he did not know the effect of the presence of dampness or rust in the holes.
    
      Held, that the jury was justified in finding that the defendants were guilty of negligence in neglecting to examine the holes before directing the plaintiff to fill them, or in failing to notify the plaintiff that such an examination had not been made, and to warn him of the danger which might be expected in case the holes happened to be damp or rusty ;
    That the jury was also justified in finding that the plaintiff was not guilty of contributory negligence because of his failure to make the examination himself.
    Appeal "by the plaintiff, Flora Belle Dyer, as administratrix of Charles E. Dyer, deceased, from an order of the Supreme Court, made at the Onondaga Trial Term and entered in the office of the clerk of the county of Onondaga on the 18th day of August, 1899, setting aside a verdict in favor of the plaintiff for $2,000 and granting a new trial.
    
      Raymond Cobb, for the appellant.
    
      Charles L. Stone, for the respondents.
   McLennan, J.:

The action was commenced on the 29th day of December, 1896, by Charles E. Dyer in his lifetime, to recover damages which he sustained because of the alleged negligence of the defendants. The action was tried on the 13th day of March, 1899, at a Trial Term of the Supreme Court held in and for the county Of Onondaga, and resulted in a verdict of $2,000 in favor of the plaintiff, for which sum, together with costs, judgment was entered. After entry of judgment and the motion for a new trial had been granted Dyer-died, and his administratrix was substituted as party plaintiff.

On the 19th day of March, 1896, Dyer was in the employ of the defendants, working in their foundry as a molder, and had been employed in .that capacity for about two years prior to that time. He was a man of experience in his trade or calling, having worked at it for about fourteen years prior to the' time in question, and having spent two or. three years prior to that time in learning such trade. While in the employ of the defendants he was required to make'one casting each day at a particular place on the floor of the molding room, which was 119 feet long and about 38 feet wide. When such -casting was completed his day’s work was considered done, regardless of the length of time he actually devoted thereto.

. It appears that the castings made by Dyer and other of the employees of the defendants were occasionally found to be defective, on account of the existence of shrink holes or blow holes, which were apparent from the outside, and it was deemed necessary or proper by the defendants to have such defective castings gathered together at some place upon the floor of the molding room, and there have such holes poured or filled with molten iron.

In the molding department of defendants’ business the defendant William H. Brown had special supervision, and one George Ha-lliday was the foreman, had authority to hire and discharge the men, and he and the defendant Brown determined the work to be done in the molding room, laid it out and. arranged for doing it each morning.

March 19, 1896, was a dark and rainy day, so that in the molding room it was somewhat dusky. About five o’clock in the afternoon of that day Dyer had completed his mold or casting, which constituted his day’s work, and was standing by his flask ready to poui* his -mold whenever he should be called. At that time the defendants’ foreman asked Dyer to assist in filling the holes in the defective castings, which had been placed together by direction of the defendant Brown at a place some forty feet distant from where Dyer was at work. The defective castings had all been arranged for pouring by the defendants’ foreman, and everything was put in readiness for such work under and by his direction, and before Dyer was asked to aid in pouring the holes. The plaintiff’s intestate at first refused to assist in this work, for the reason, as stated, that he had completed his day’s work and did not propose to do more. The evidence tends to show that he was told by the defendants’ foreman that unless he complied with his request and assisted in filling the holes in the defective castings he would be discharged, and that he thereupon consented to assist in doing such work; got his ladle, filled it with molten iron and proceeded, in connection with another employee, to fill the holes in the castings. Soon after the work was thus commenced, molten iron was poured into one of the holes by Dyer, an explosion occurred, resulting concededly because there was water or rust in the hole, and a piece of the casting struck plaintiff’s intestate in the eye in such a manner as to cause its loss.

There was evidence tending to show that the roof of the building, immediately over the place where the castings in question were being poured, was defective and in such condition that drops of water leaked through onto the castings in such a manner as to make it a dangerous place in which to perform the work in question, and that such condition had existed for such á length of time that the defendants knew of it, or ought to have known of it in the exercise of ordinary care and prudence, and that Dyer did not know or have the means of knowing of such condition, in the exercise of reasonable care. It was urged by the appellant’s counsel that if the explosion occurred from such cause the defendants are liable, for the reason that they thus failed to furnish a reasonably safe place for the plaintiff to perform his work. That question, however, was not submitted to the jury by the learned trial court, and they were not permitted to consider or pass upon that question.

The court held and charged the jury : “If there was water in this hole, by reason of its falling down through this roof while the plaintiff was at work there, that that is not a basis for recovery in this case.”

And again: If this water got into the hole there through rain falling through the roof while the plaintiff was at Work there, that was something just as open to his observation as it was open to the observation of the defendants and their foreman. He could appreciate just as well as the defendants could if • the water fell through there, through the roof there, onto the castings, that it was liable to get into the hole and cause an explosion. If he didn’t want to work-there when the rain was falling, and he could see,; it was then his duty to stop working unless they remedied it.”

So that the consideration of that question is' eliminated, - for the answer to a proposition which was not submitted to the jury cam not -be made the basis of a verdict, because we. cannot assume that it would have beep answered favorably to the plaintiff by -the jury. . •

The oíny questions submitted to the jury were, whether or not the defendants ought to have given Dyer notice or Warning of the effect of dampness or rust ■ being in the holes into which he was about to pour the mblten iron, and that an explosion would likely result ? “ Whether there was anything about this explosion, happening as it did, which these defendants ought to have notified and warned the plaintiff about ? ” And whether “ Mr. Dyer himself knew or ought to have known that the explosion was liable to happen through the causes and in the manner in which this explosion did happen?” The submission of these propositions to the jury was not excepted to by the defendants, and we must assume that each was answered favorably to the plaintiff’s intestate. It only remains to be seen whether such answers were justified by the evidence, and, if so, whether a cause of action against the defendants was established.

The evidence clearly establishes that the defendant William H. Brown and the foreman Halliday were practical and experienced molders; both fully understood the effect of pouring molten iron into- damp or rusty holes, and the result which would be likely to follow. They had both frequently caused holes similar to those in the castings in -question to be filled; knew precisely how the work was to be performed1, even to the minutest detail.

As we have seen, the castings in question, five in all, each with a hole to be filled, were placed in position upon the floor of. the molding room, at a place some forty feet distant from where plaintiff’s intestate was accustomed to work. They were so placed by the foreman, under the direction of the defendant William H. Brown, and, according to the testimony of Dyer, ids only part of the work was to fill the holes with molten iron. He had nothing to do with the placing of the castings, the preparation of the holes or making any of the arrangements preparatory to doing the work. He says that after protesting, he finally consented to help do the work; walked over to where the castings were; found a fellow-workman with a large ladle full of molten iron in his hands that the two attempted to pour, and that he finally got a smaller ladle and had emptied into it a portion of the iron from the large ladle and then filled one hole from the small ladle, and that while attempting to fill the next the explosion occurred.

Upon the evidence of one witness called' by the defendants and which is uncontradicted the jury would have been justified in finding that it was necessary, in order to have properly prepared these castings for pouring, to have examined the holes to ascertain whether there was rust or dampness in them; that it' was necessary, if rust was found, to chisel it off or remove it, and that, in case dampness was found, to dry the hole by placing a hot iron in it. So far as appears no such examinations were made of the holes in question by the defendant Brown or the foreman, Halliday. No means were taken to ascertain whether the holes were damp or rusty or to remove such dampness or rust if it existed.

Hpon all the evidence we think the jury were, justified in finding that it was the duty of the defendants to have made or have caused to be made such examination before calling one of their employees to come to the place with a ladle full of molten iron and undertake the work under such circumstances as would prevent a proper investigation by him of the condition of the holes to be poured, and that they were also justified in finding that the plaintiff’s intestate had a right to assume, when he came to the place where the castings were with a ladle full of molten iron, as he did under the direction of the foreman, according to his testimony, that the holes which he was to pour were in a proper and safe condition for that purpose, and that it was incumbent upon the defendants to have warned him against the danger which was to be apprehended from pouring melted iron into holes which had1 not been thus examined and treated.

We think the jury were justified in finding that the defendants were guilty of negligence because they failed to properly examine the holes in question before directing the plaintiff’s intestate to fill them, or because of the fact that they failed to notify him that such examination had not been made, and to warn him of the danger which might be expected in cáse the holes happened to be damp or rusty, and also that the jury were justified iii finding that the plaintiff’s intestate was not guilty of contributory negligence because of the fact that under the circumstances he did not make such examination himself.

These conclusions are reached entirely independent of Dyer’s experience as a molder and of his knowledge of the business. If one of the defendants in this case had held out a ladle in front of Dyer and asked him to fill it with molten iron, we think Dyer would have been justified in doing as directed without stopping to examine the ladle to see whether it contained water or was free from rust, and that, if injury resulted to Dyer under those circumstances from either nause, the defendants woxild have been liable.

The case at bar is similai’. The assertion on the part of the defendants to Dyer was, in substance, the holes in these castings are ready ; come with your ladle full of molten iron and fill them. We think under such circumstances the employee .was not required to make a personal examination of each hole to ascertain whether it was safe for him to do as directed in order to excuse himself from the charge of contxlbutoiy negligence, and it is equally plain that the defendants did not discharge their full duty in the premises.

In addition it may be said that Dyer testified that he had never poured holes of the character in question prior to the accident; that in all his expeiience as a molder he had not seen such work done; that he had not been required to do anything of the kind before during all the time he had been- in the employ of the defend- • ants, and he stated that he did not know or appreciate what the effect would be in cáse dampness or rust were present in holes of that character. It was for the jury to determine as to the truth of this testimony. The question wras submitted to them, and the verdict indicates that they believed and gave credit to the testimony, and, if such was the fact, then the defendants were guilty of negligence in not apprising him of the danger to be apprehended from attempting to pour molten iron into a rusty or damp hole. (Hall v. United States Radiator Co., 52 App. Div. 90; Davidson v. Cornell, 132 N. Y. 228; Kiras v. Nichols Chemical Co., 59 App. Div. 79; Smith v. Peninsular Car Works, 60 Mich. 501.)

We think, under all the evidence in this case, it was a question for the jury to say whether Dyer had that information, experience and skill which should cause him to know and appreciate the danger to be apprehended from pouring molten iron into a damp or rusty hole; that it was of a character to amply justify the verdict rendered, and that no error available to the defendants was committed by the learned trial judge upon the trial.

It follows that the order granting a new trial should be reversed and the judgmént entered upon the verdict of the jury should stand with costs to the appellant.

All concurred.

Order granting new trial and setting aside judgment reversed, with costs.  