Jane A. Cooper, as Administratrix, etc., of Joseph Cooper, Deceased, Appellant, v. Fidelity Development Company and Bronx Gas and Electric Company, Respondents

Jane A. Cooper, as Administratrix, etc., of Joseph Cooper, Deceased, Appellant, v. Fidelity Development Company and Bronx Gas and Electric Company, Respondents. First Department, November 3, 1911. Master and servant — negligence — explosion of oil — duty of master — instructions --- safe place to work — warning — assumption of risk — evidence. ■ ‘ Where a development company which had purchased certain oil, which it knew to be highly explosive, directed two of its employees to pump the oil from a tank into a wagon and sprinkle it on the roads in the vicinity, it is the. duty of the company .to instruct the men, who had had no experience in handling-such oil, as to its dangerous nature. . It is also its duty to furnish them with proper appliances and a safe place to do the work. Where the company instructed the men to continue the work until the oil was ah pumped out, which would compel them to work until after dark, it was its duty to furnish them with a proper light so that there would be no unnecessary danger of an explosion. The fact that the superintendent of the gas company from which the oil was purchased, who did not know that the men would have to work after dark, cautioned them not to smoke around the tank, was not a performance of the development company’s duty to protect its employees and instruct them as to the dangers of the work, especially as it was not given on behalf of said company. The superintendent was justified in assuming that the men’s employer would properly instruct them and there was no duty imposed on him or the gas company to do so, casto furnish them with a safe place to work. It seems, that the warning of the superintendent would be competent evidence on the question of the assumption of risk, or, possibly, on the question as to whether the men sent to pump the oil were guilty of contributory negligence in using an ordinary lantern while working about the tank after dark. The pleadings and the opening of plaintiff’s counsel in an action to recover for the death of one of the men caused by an explosion of the oil while it' was being pumped from the tank examined, and held, that a judgment in favor of the development company entered upon a dismissal of the complaint at the opening should be reversed and a new trial granted; That a judgment in favor of the gas company should be affirmed. Scott, J., dissented in part. Appeal'by the plaintiff, Jane A. Cooper, as administratrix, etc., from two jndgmeüts of the Supreme Court, one in favor of the defendant Fidelity Development Company,/entered in the office of the clerk of the county of New York on the 24th day of March, 1911, and the other in. favor of the defendant Bronx Gas and Electric Company, entered on the 4th day of April, 1911, upon the dismissal of the complaint by direction of the court on the plaintiff’s opening’ as to both defendants on a trial at the New Yolk Trial Term. William R. Hill, for the appellant. John D. Fearhake, for the respondent Fidelity Development Company. John Vernou Bouvier, Jr., for .the respondent Bronx Gas and Electric Company. [MAJORITY — Ingraham, P. J.:] Ingraham, P. J.: We all agree in the affirmance of this dismissal as to the Bronx Gas and Electric Company. I think there was a cause of action in the complaint as against the Fidelity Development Company. It was alleged in the complaint that the plaintiff’s intestate was at 'the time of his death in the employ of the Fidelity Development Company'as a driver of a two-horse wagon; that the gas company was in possession of certain real property situated in the city of New York, upon which there was constructed a large iron tank about ten feet from the ground, which contained about 7,000 gallons of oil which was highly explosive, which fact was known to the Fidelity Development Company; that on or about the 26th of September, 1907, the development company purchased the oil in the said tank from the gas company, and the gas company permitted the development company and the deceased to enter upon its property for the purpose of removing the said oil; that'the defendants had knowledge that the said deceased had no experience in handling oil and no knowledge of its explosive qualities; that the defendants failed to instruct the said deceased as to the dangerous and explosive qualities of the said oil, and failed to instruct him as to the proper and careful manner of handling said oil and permitted him to handle the said oil at night without such instructions; that the development company directed the deceased to pump the oil contained in the said tank from the tank to its wagon, and then to cart it away and sprinkle the roads thereabouts with the oil, and to continue so to do O during the night of September 26, 1907, and furnished him an iron suction pump with which to pump said oil; that on the evening of the said 26th day of September, 1907, by reason of the handling of said oil, an explosion occurred by reason of which the said Joseph Cooper was killed; that the said deceased lost his life through no negligence or fault on his part, but solely by reason of the negligence of the defendants and each of them, and also by reason of the failure of the defendant the Fidelity Development Company to provide him with a safe place to work. The answer of the development company admits that, it failed to instruct the deceased as to the dangerous and explosive qualities of the contents of said tank, or as to the proper and careful manner of handling said oil. When the case came on for trial, counsel for the plaintiff opened his case to the jury. From that opening it appeared that the development company purchased the oil from the gas company; that the gas company’s superintendent, one Butler, went to "the tarde with a representative of the development company, and' the deceased was at that time on the premises. The deceased and another man were told to pump the oil out of this tank by means of a pump that was supplied by the development company. Butler, the representative of the gas company, was there until the deceased and his' fellow-workman rigged up the pump, and then Butler left. Butler said in the presence of the deceased and his fellow-workman that it was all right, but that they-must not smoke around the tank; that these men continued to work and pump this oil out of the tank up to about eleven o’clock at night; the yard was dark and there was no light there;' that these men had a lantern which they had used from the time it became dark until about eleven o’clock, when the tank exploded; that the deceased and his "fellow-workman were-directed to work until they had pumped all the oil out of the tank. Cooper and • his fellow-workman were both killed by the explosion. .About a half hour before the accident some men were sent down to take food to the men at work, and while Cooper and the other workman were eating this food they pumped the oil. Cooper and his associate cautioned these men while at work .not to smoke around the tank. About a half hour after these men left the explosion occurred. It is not alleged in the complaipt nor was it stated in the opening that Butler, the representative of" the gas company, had anything to do with the two men at work except to be present when the cover' of the tank was removed to enable the oil to be pumped out. He had no knowledge that the men were instructed to work at night or after it became so dark that artificial light had to be provided for their work. He cam tioned them against smoking around the tank, and so far'as appears this caution was sufficient unless the men had to work after dark. He was justified in assuming that the employers of these men .would give them the necessary instructions to protect them from injury while at work at the tank and there was no duty imposed upon the gas company or its representative Butler to furnish the development company or its employees with a safe place to work. I think, however, there was" an additional duty imposed upon the development company to furnish its.employees with a safe place to work and proper appliances to do the work required of them. Here were men employed by the development company to handle a dangerous substance where an explosion was to be anticipated unlesg great care was used in performing the work. When the development company instructed them to continue the work until the oil was all pumped out, which would compel them to work after dark, it was the duty of- the development company to furnish them with proper light so that they could do their work without being exposed to the danger. of an explosion. It is alleged in the complaint that the development company had knowledge of the explosive character of this oil and it was certainly not a safe place for these men to work after dark unless such light as Was necessary to enable them to carry out their instructions was furnished of such a character that it would not cause an explosion. The fact that Butler cautioned them not to smoke around- the tank was not a performance of the obligation imposed upon the employers of these men, and the warning that he gave was only to refrain from smoking — possibly a sufficient warning if the work was to be done during the day time when no artificial light was necessary; but it was not given by the development company or on its behalf and cannot, I think, be said to be a compliance with the duty which devolved upon the development company to protect its employees. The warning was competent as bearing upon the assumption of risk by the ■ deceased or possibly upon the question as to whether they were guilty of contributory negligence in using a lantern; but I think that question was one for the jury. It seems to me there was an absolute failure of the development company, the deceased’s employer, to furnish these men with a safe" place to work- and safe appliances with which to do the work, or, at any rate, there was a question for the jury to say whether the obligation of the development company to its employ ees was performed. The judgment in favor of the Bronx Gas and Electric Company should, therefore, be affirmed, with costs, and the judgment in favor of the Fidelity Development Company should be reversed- and a'new trial ordered, with costs to appellant to abide event. Laughlin, Clarke and Dowling, JJ., concurred.; Scott, J., dissented as to the reversal. As to Bronx Gas and Electric Company judgment affirmed, with costs; as to Fidelity Company judgment reversed and new trial ordered, costs to appellant to abide event. Order to be settled on notice.