
    (67 Hun, 586.)
    DANA v. CROWN POINT IRON CO.
    (Supreme Court, General Term, Third Department.
    February 15, 1893.)
    Master and Servant—Defective Appliances.
    The fact that defendant, operating a blast furnace, failed to provide a lock, catch, or hasp, to hold in place, when not in operation, the lever by means of which hot air blasts were turned into the oven, will not render it liable for the death of one of its employes, who, while cleaning the oven, was killed by a hot air blast turned on by some unknown agency, where it appears that defendant had furnished a nut, the tightening of which would hold the lever in place when not in use.
    
      Appeal from circuit court, Essex county.
    Action by Almira M. Dana, as administrator, etc., of Herbert Dana, deceased, against the Crown Point Iron Company, for the death of plaintiff’s intestate. From a judgment dismissing the complaint, plaintiff appeals.
    Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Wallace T. Foote, Jr., (Charles S. Foote, of counsel,) for appellant.
    Weeds, Smith & Conway, (Richard L. Hand, of counsel,) for re-, spondent.
   HERRICK, J.

The defendant is a corporation owning and operating a blast lurnace. As a part of this furnace, used for the purpose of heating the draft of air forced into it, called the “blast,” is a “stove” or “ oven,” so called. This stove or oven is a large stack or chimney of iron, some 70 feet high and 16 feet in diameter, divided into four apartments. The largest apartment is occupied from top to bottom with a large number of small fire brick flues or chimneys, without lateral connections. It is operated by conducting gas into the oven; the gas is ignited, passes up through the apartments not occupied by the fire brick flues, to the top of the flues, passes over and is drawn down through the fire brick chimneys or flues, and is drawn out or escapes by a chimney valve. By this process the fire bricks are heated to 900 or 1,000 degrees Fahrenheit. When they have been so heated the gas is shut off, what is called a “blast valve” opened, and air forced by powerful ■ engines through these heated passages in the oven, and is heated by the fire brick to a temperature of from 900 to 1,000 degrees. Then it is conducted through an opened blast valve into the furnace, furnishing what is called a “hot blast.” This blast valve is located at the bottom of the stove of oven,'on its front. It works vertically across a horizontal pipe, and is raised by means of compressed air admitted into a cylinder underneath a piston directly above the blast valve, and connected with it by the piston rod and a valve stem, which are joined together by a toggle joint. The admission of air to the piston is controlled by wdiat is called a “four-way cock;” that is, a cock with openings 90 degrees apart. The four-way cock is operated by a lever some 14 inches long. When the lever is horizontal no pressure can enter above or below the piston. When the lever is depressed about 45 degrees, air is admitted under the piston, and the blast valve is raised. When the lever is raised 45 degrees, air is admitted above the piston, and a downward pressure is obtained, which tends to keep the blast valve closed. There is a nut on the four-way cock, which may be tightened or loosened. Tightening the nut increased the friction or difficulty in moving the lever, and is intended to be used for that purpose. The men in charge of the furnace control the ease or difficulty of moving the lever by the use of this nut. This nut would naturally tend to work loose. The evidence shows that a month or six weeks before the accident this nut was tightened up; complaint was made that it was too tight, but no change was made. I cannot find anything in the evidence as to its condition at the time of the accident. At the time of the accident there was a small copper wire fastened by one end above the lever to what is called a “pressure pipe.” It was then conducted around the lever by a single turn, and left hanging free. It had a tendency to hold the lever up in its horizontal position. This wire seems to have been placed there by some of the men in charge of the furnace. It was not a part of the original construction of the machine. The nut, when proper!y tightened, would keep the lever in a horizontal position, unless some force was applied to it to move it either up or down. There is a pathway in front of the oven, and three or four feet distant from it. There is nothing to prevent a person using the path from using or meddling with the lever. The pathway is used by the workmen to go around the ovens, and to go to and from the different buildings of the defendant. Dust settles in the oven, and it has to be cleaned at periods of from two to three months, and for that purpose there is a manhole opening into the oven, by means of which a person may enter and clean it. The furnace in question, with its appliances, was put up in 1881. It is similar in construction to those used in some 17 other places, and, so far as appears, is reasonably safe in construction, and suitable for the purpose for which it is constructed. No accident of the kind in question appears ever to have happened before with any of the furnaces. The oven of defendant’s furnace had not been cleaned out for about three months, when, on the 12th day of October, 1889, the plaintiff’s intestate, Herbert Dana, entered the oven through the manhole, to clean it out. He had been in there but a very short time when the attention of other workmen was called to the sound of wind and dirt blowing out of the oven, and the cries of Dana to help him out. He was dragged out of the oven, his clothes burned off of him, and his body a charred and blackened mass. It was noticed half or three quar7 ters of an hour afterwards that the lever, instead of being horizontal, was down, so that the hot blast had been turned on. The wire was still around the lever, but had apparently slipped along it. There is nothing in the case to indicate what caused the moving of the lever, and the consequent turning on of the hot air blast,—whether fellow workmen or strangers tampered with it, or how it occurred. There are only the naked facts that the man went into the oven, the air blast was turned on, and shortly afterwards it was discovered that the lever was down. Everything else is guesswork and surmise.

No positive act of negligence on the part of the defendant is shown. Neither do I see that there is anything that it omitted to do that the law required it to do. It furnished a good machine, reasonably safe to operate. The manner of operating it, the turning on and off of the blast, the cleaning of the oven, the handling of the lever, were all matters of detail, which must necessarily be looked after by its employes, and rested upon their care, intelligence, and fidelity. Cullen v. Norton, 126 N. Y. 1, 26 N. E. Rep. 905; Filbert v. Canal Co., 121 N. Y. 207, 23 N. E. Rep. 1104. There is no claim here, as I understand it, that the fellow workmen of the deceased were not fit and competent men. It is said, however, that all danger of the lever going down could have been avoided by taking it oS, by providing a lock for it, or a catch or hasp. True, but the defendant is not bound to provide the best-known or conceivable appliances. Burke v. Witherbee, 98 N. Y. 562. But eventhe appliances suggested would not insure the safety of the men emplo yed; human agency would still have to be used to remove the lever, to lock or unlock the lock, to arrange the catch or hasp. Carelessness or negligence of fellow workmen, or the interference of strangers, would render useless such appliances. In this case it appears that the proper tightening of the nut provided for that purpose would prevent the movement of the lever, unless it was tampered or interfered with. The same causes that would render the suggested precautions ineffectual would, and possibly have, rendered the one provided by the defendant useless. I can see no error committed upon the trial sufficient to call for a new trial.

The judgment should be affirmed, with costs. All concur.  