27 N.Y.S. 16 | N.Y. Sup. Ct. | 1894
The plaintiff had been in the defendant’s employ for a year and a half, engaged in the same duties and exposed to the same dangers as at the time when the accident occurred from which the injury was received of which he now complains. Tie accident was the explosion of gas in a tank in which paraffine was being heated, and it was caused by the act of the plaintiff himself in raising the lid of the tank with a lighted lantern in his hand, or' hanging on his arm. The gas escaping from the open tank communicated with the flame of the lantern, and the explosion followed, in which the plaintiff was burned and otherwise injured. The paraffine tanks or boilers were outside of the building, and were
The second and third of these grounds need not occupy very much of our time. It is plain that the doctrine of the liability of the employer for failure to prescribe rules for the conduct of his servants has application only to charge the employer with responsibility to one servant for the act or neglect of a fellow servant in the same employment. In this case there was only one fellow servant whose act or neglect seems to have borne any possible re-lotion to the accident in question, and the plaintiff does not seek to charge the defendant with responsibility for his act or neglect. That servant was the engineer, whose duty to turn off the steam from the tank at the proper time was well understood by him, but who on this particular evening intrusted that duty to the plaintiff himself; so that, if the steam was not shut off in time, or the tank was opened too soon after the steam was shut off, the plaintiff has only himself to blame.
In respect to the lighting of the tanks it was in evidence that there were some electric lights in the yard,—though the plaintiff testified that they were not so situated that he could see at the tank which exploded,—and that a new electric light had been put up, within a few days, on the outside of the building, near the tank, which could have been lighted by turning on the electricity by a switch inside; but the plaintiff testified that he did not know of its
We are of the opinion, therefore, that the question in the case is narrowed down to the first of the grounds above enumerated upon which negligence is alleged against the defendant, viz. the failure to give the plaintiff necessary instructions as to the dangers to be 'guarded against in the performance of his duties, and especially in the use of a lantern in proximity to the paraffine tanks. And in this respect it seems to us that the verdict, which charges the defendant with culpable negligence which was the producing cause of the accident in question, was against the law and the facts of the case as it was made on the trial under review. In the first place, it is to be observed that the defendant was not required to exercise the highest possible diligence to instruct the plaintiff in every conceivable particular of the circumstances in which he might be placed, or in every possible detail of his conduct in the performance of his duties. The requirement in this respect is only that the master exercise ordinary and reasonable care to see that the servant possesses a competent knowledge of the peculiar dangers to which he is exposed in doing his work, and of the precautions necessary to be taken to guard himself against those dangers; and in the exercise of that care the master has the right to assume that the servant brings to the work ordinary intelligence and powers of observation, and the capacity to learn something from observation and experience. De Forest v. Jewett, 23 Hun, 490, 493, affirmed 88 N. Y. 264. Moreover, the duty to instruct against dangers incident to the work extends only to such dangers as are known to the master himself, or which are reasonably to be apprehended from the nature of the employment. Devlin v. Smith, 89 N. Y. 470, 476; Stringham v. Hilton, 111 N. Y. 188, 195, 196, 18 N. E. 870. In this case the plaintiff had had practical experience of a year and a half in the performance of the same duties as those in which he was engaged on the night of the accident, and it is impossible to believe that he had not in that time acquired some knowledge of the nature and properties of the substances with which he was engaged; that he had not learned that the products of petroleum, under some conditions, and especially the condition of great heat, are capable of generating explosive gases, and that it is unsafe to bring fire into contact with those gases when they are being evolved.
But the plaintiff testifies that he had been in the habit, during the whole of his experience with the paraffine tanks, of doing the work assigned to him in the same way as on the night in question, and that no explosion had ever before occurred. If this is true,—if he had habitually raised the lid of the tank with his lantern in his hand, or hanging on his arm, and done so with impunity,—then the inference is unavoidable that the conditions present on the night in
Order appealed from reversed, and a new trial granted, with costs to abide the event. All concur.