
    Nichols v. Bush & Denslow Manuf’g Co.
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1889.)
    
      Í. Master and Servant—Dangerous Appliances.
    Where, as a necessary result of Improper appliances in use in an oil distillery, gas is allowed to escape into an empty still, and an employé is injured by an explosion of such gas, the master is liable.
    ■2. Same—Evidence.
    In an action for such injury, it was proper to show by the testimony of a witness who had been in defendant’s employ up to within about a year of the accident, that while he was there the sam i defective conditions existed.
    3. Same—Master’s Knowledge of Defects.
    To show that the defective condition of the still in which the employé was required to work was known to the employer, evidence was properly admitted that another employé had, prior to the accident, repeatedly complained of it to the superintendent.
    Appeal from circuit court, Kings county.
    Action for damages for the alleged negligent killing of plaintiff’s husband while in defendant’s employ, brought by Bridget Nichols against the defendant corporation. The circumstances under which the death of plaintiff’s decedent occurred are sufficiently stated in the opinion. On the trial plaintiff introduced as a witness one Bsdale, who was permitted to testify, over defendant’s objections, that he was in defendant’s employ during the years 1885 and 1886, but not during the year 1887, when the accident complained of occurred; that he was familiar with the condition of defendant’s stills; and that there was always more or less gas in the “running-room” during the time he was so employed. The testimony of McCormac, referred to in the opinion, was as follows: “Question. Did you have any conversation with the superintendent or assistant superintendent relative to the dangerous condition of affairs at this place by reason of no stop-cocks being on the different pipes to prevent gas going back to the still? Answer. I did; yes, sir. Q. How frequently did you speak to the superintendent or assistant superintendent on the subject? A. Three or four times a year. Q. When was the last time prior to this explosion that you spoke to him on the subject of having stopcocks placed there? Q. Maybe nine months, about, before that. Q. What did you say to him about putting stop-cocks on these pipes? A. Itold him to put in them stop-cocks so that the men who were running them stills could shut it off themselves. Q. Did you say anything about the danger of getting hurt? A. I did; I said that the still men were complaining about gas going back into the stills. Q. What more, if anything, did you say about the danger of persons being hurt? A. I said on several occasions that some one would be hurt some day.” Objections and exceptions were duly taken by defendant to all this testimony. There was a verdict and judgment for plaintiff on a second trial, and defendant appeals.
    Argued before Babnabd, P. J., and Pbatt, J.
    
      Hascall, Clarke & Vanderpoel, for appellant. Carpenter & Roderick, for respondent.
   Barnard, P. J.

The defendant is a distiller of crude oil. In the process of distillation a large amount of gas is generated. Some of it was used for fuel, and the remainder was designed to escape into the running-room, which was at all times dangerous, if a lighted candle was brought there when the machinery was in operation. One of the stills needed repairs. The mechanic

and the plaintiff’s intestate went into it with a candle, and there was an explosion, and both men were instantly killed. The deceased intestate was not a mechanic, but a common laborer, and was ordered in the still by White, the mechanic, but he had worked with White before in and about repairing the stills, but whether he had been in the habit of' going or ever went into the still is not proven. It appears that gas from the other stills in use, of which there were some 12 or 13, will return back into the empty still in process of repair, and that this result was occasioned by the absence of a stopcock. This result would not be occasional and doubtful, but would happen with absolute certainty. The place in which the deceased -was put to work was not a safe place. A servant takes the risk of the employment, but he has the right to rely upon the performance of the master’s duty. The rule of duty is explained by the court of appeals in these words: “ The rule is unqualified that a master is bound to use all reasonable care, diligence, and caution in providing for the safety of those in his employ, and furnishing for their use in his work safe, sound, and suitable tools, implements, appliances, and machinery in the prosecution thereof, and keeping the same in repair. ” Bushby v. Railroad Co., 107 N. Y. 374, 14 N. E. Rep. 407; Benzing v. Steinway, 101 N. Y. 547, 5 N. E. Rep. 449. The master cannot delegate the performance of this duty to another, and escape liability, on the ground that the neglect was the neglect of the employé, and ignorance of the defendant in the instrumentality will not excuse. Ellis v. Railroad Co., 95 N. Y. 546.

If the accident could have been prevented by the exercise of proper care, it is negligence in the master not to have avoided the danger. Contributory negligence is generally a question for the jury. If the deceased had the right to assume the performance of his master’s duty, there is no ground upon which he can be charged with negligence on his part which contributes to the injury. He went in the still at the request of the mechanic, White. It is true that he had refused before to go in unless White went in «first, but his suspicion was removed by the fact that on those occasions no accident happened. The inquiry made of the witness Esdale was proper. He testified that for the entire two years that he had worked in defendant’s distillery there 'was always gas in the running-room,—the room connected with the still in question. The conversation with McCormae was proper. He was defendant’s superintendent, and in respect to the question at issue was the master. The judgment, therefore, is supported by evidence which makes out a liability against the master, and should therefore be affirmed, with costs.

Pratt, J., concurs.  