George Hall, Respondent, v. United States Radiator Company, Appellant

George Hall, Respondent, v. United States Radiator Company, Appellant. ..Negligence —failure of .an employer to instruct an inexperienced molder that the contact of molten iron with rust will cause an explosion — duty of employees to'li'ght gas jets in a foundry. '.It requires actual experience, special knowledge or scientific skill to know that the contact of ‘molten iron with rust will cause an explosion; and a proprietor of an iron foundry, who neglects to apprise an inexperienced molder in his employ of that fact, is guilty of negligence which will render him liable for personal injuries sustained by the molder in consequence of an explosion caused by the molder’s pouring upon a rusty flask some molten iron which, in ¡accordance with the instructions of his foreman, he was attempting to. pour ■on the sand near the flask in order to create 'sufficient light to enable him to' pour the metal into the flask. "The duty of lighting gas jets, maintained in the foundry for the convenience of the employees, devolves upon them and not upon their employer. Appeal by the defendant, the United States Radiator Company, ■from a judgment of the County Court of Chautauqua ¡ county in' favor of the plaintiff, entered in the office of the cleric of the county ■of Chautauqua on the 20th day of February, 1899, upon the verdict -of a jury for $1,500, and also from an order entered in said clerk’s -office on the 28th day of April, 1899, denying the defendant’s motion for a new trial made upon the minutes. The plaintiff was employed by defendant as a laborer from the .latter part of July, 1897, to November first of that year. He helped in the shipping room and yard and worked in all parts of the factory, •including the foundry, where he carried flasks and patterns part of the time nearly every forenoon. He did whatever he was told .to •do by the boss. His previous employment had been farming, selling milk and working for a nurseryman. He had worked two days as a molder.in this foundry eight years prior to this employment. According to plaintiff’s evidence, about the 1st of November, 1897, McNeal, the foreman of defendant’s foundry, asked plaintiff if he wanted to work in the foundry as a molder; plaintiff said in answer, that ¡he did not know anything about the work, to which McNeal replied' that was all right, it would not take long to teach him ; that .¡he or they.would show plaintiff all that- was necessary to do the work as a molder, whereupon plaintiff was assigned to duty as a molder, at increased wages, and McNeal showed him how to mix the sand and ramp and dress the molds and said he would have the other man show plaintiff anything that it was necessary for him to know. The space occupied by each molder is called a floor. Plaintiff was furnished thirty-two flasks, which are described as square iron boxes forty or forty-eight inches long and fourteen inches wide, open • at the top and bottom and divided longitudinally into two equal parts. The upper part is called a cope and the lower part a drag. There is a metallic projection at each end of the cope and drag about three inches long and four inches wide, and from the projections on the drag a pin passes through the projections on the •cope to hold them in place. About half an inch from the end of the flask a sprue hole one and one-half inches in diameter is left, on top of the mold, into which the molten iron is poured. About three inches from the sprue is a vent hole three-fourths of an inch in diameter, from which, when the molten metal is poured into the mold, vapor, gas or steam arises rendering the atmosphere murky and to some extent darkening the foundry. The molders are engaged until about four o’clock each day in preparing the forms in these flasks, and from that time until five-thirty or six o’clock in bringing the molten iron from a large pot in the cupola, into which it is run, -in ladles which hold about thirty pounds or sufficient for one flask. The ladles have handles five or six feet in length and spouts through which the metal is poured into the sprue. Plaintiff did not fill daily on an average to exceed twenty-five of the thirty-two molds provided for his use. After he had been working as a molder for two weeks, the foreman complained that he was using a good many molds and would have to do better. Plaintiff claims to have replied that he was doing the best he could; that it was so dark when pouring-off time arrived that he could not see to pour off well; that the foreman told him to pour a little of the melted iron on. the sand on top as near the sprue hole as he could, which would light up the top of the- flask so that he could see to pour the metal into the sprue hole no matter how dark it might be and that he thereafter followed this suggestion daily until December thirteenth, when the foundry closed temporarily. Windows afforded sufficient light in the middle of the day, but in the morning and late in the afternoon gas jets would be lighted by the men as-required. One gas jet seven or eight feet high was located six or' eight feet from plaintiff’s floor and there were other gas jets near by but somewhat farther removed. Plaintiff testified that.the foreman cautioned the men to be careful about using the gas, and at times, when he found it lighted, would turn it off. On December 29, 1897, plaintiff received a letter from the superintendent notify-. ing him that work would be resumed on January seventeenth. He accordingly reported for duty on that day. A former molder, who had Worked in the foundry during the time plaintiff was there, had then become foreman and directed plaintiff to take his former floor, stating that hewonld find his flasks there and informing him where the other tools were. Plaintiff found on his floor thirty-five flasks, smaller than he had been using, all entirely coated .over with rust so that he was obliged to scrape it off the edges that came together to prevent the metal flowing through. The superintendent and foreman passed where plaintiff was working several times that morning and saw the flasks he was using and the foreman knew that they were rusty. During the afternoon of January seventeenth some of the gas jets in the foundry, which shed little or no light on plaintiff’s floor, were lighted; but the jets nearest where he was working were not lighted according to his testimony, but two witnesses called by defendant controverted this. Plaintiff poured off eight or ten flasks without artificial light and from five to eight more aided by light produced by pouring some of the metal on the sand 'near the sprue, as he had been instructed. When he came with the next ladle full it was so dark that he could not even see the flask, and -he located it by feeling with the ladle, and then poured some metal out to make a light. It struck on the projection at the end of' the flask, where the pin from the drag came up through, producing an explosion which caused the molten iron to fly into his face, resulting in the loss of the sight of his left eye and slightly weakening the sight of the right eye. The explosion was caused by the contact of the melted iron with the rust, and an explosion will also result from contact between molten iron and any moisture. This danger is well known to experienced molders, who guard against it by sprinkling sand over any rusty part of the flask. Plaintiff testified that he was not aware of the danger and .had not been instructed concerning the same, but that he had observed that sparks were constantly flying from the large pot of molten iron in the cupola, and that he and the other molders wore caps to protect their eyes therefrom ; that he had also noticed that when molten metal was spilled from the ladle's it' would spatter,-and his shoe tops and trousers had been burned to some extent from that causé, and he had observed the shoes and trousers of other molders similarly affected thereby. He had been instructed to warm his ladle to dry it before filling, and knew that other molders did the same. There were lamps in the core room which the men were at liberty to use and did use in setting the cores in' the molds. Plaintiff testified that he had never used a rusty flask before that day. Other witnesses testified that all flasks are rusty more or less. At the close of the plaintiff’s case defendant’s counsel moved for a nonsuit on the grounds (1) that plaintiff assumed the risk; (2) that he failed to show freedom from contributory negligence ; (3) that he failed to establish a cause of action or to show that defendant was guilty of negligence, The motion was denied and defendant excepted. At the close of the evidence the motion was renewed on the same grounds, denied, and an exception again taken. Other exceptions were taken during the trial, which will be considered in the opinion. Louis L Babcock, for the appellant. Thomas H. Larkins, for the respondent. [MAJORITY — Laughlin, J.:] Laughlin, J.: This record presents a very close question as to whether the plaintiff did not, as matter of law, assume the risk. (Benfield v. Vacuum Oil Co., 75 Hun, 209 ; 151 N. Y. 671; Farrell v. Tatham, 36 App. Div. 319 ; Moore v. E. M. Birdsall Co., 22 Wkly. Dig. 528 ; Koehler v. Syracuse Specialty Mfg. Co., 12 App. Div. 50 ; Bohn v. Havemeyer, 114 N. Y. 296 ; Carlson v. Monitor Iron Works, 38 App. Div. 39: Martin v. Cook, 37 N. Y. St. Repr. 733.) But we think the evidence was sufficient to require the submission to the jury of this question, and also of the questions (1) whether the plaintiff was guilty of contributory negligence, and (2) whether defendant was guilty of negligence. The defendant had a right to presume that plaintiff possessed the average intelligence and knowledge of a common laborer, and of a. molder of . his experience, and that he would exercise such intelligence and knowledge and ordinary powers of observation to prevent injury to himself. We are of opinion, however, that it required actual experience, special knowledge or scientific, skill to know thatán explosion would be caused by the contact of molten metal with rust. While such an explosion results from natural laws, it is not a. matter of common knowledge or observation. (Davidson v. Cornell,, 132 N. Y. 228; Smith v. Peninsular Car Works, 60 Mich. 501 Rillston v. Mather, 44 Fed. Rep. 743 ; McGowan v. La Plata, M. & S. Co., 3 McCrary, 393; Holland v. Tennessee Coal, Iron & R. R. Co., 91 Ala. 444; Walker v. L. S. & M. S. R. Co., 104 Mich. 606; Swift v. Fue, 66 Ill. App. 651; Mather v. Rillston, 156 U. S. 391.) ■ If the jury believed the testimony of the plaintiff that he did not know the danger, and that his experience and observation had been insufficient to charge him with knowledge thereof, they were justified in finding that the defendant was negligent in not properly-instructing him or apprising him of the danger. According to tile-testimony of the plaintiff, he met with the injuries while endeavoring to follow the instructions of the foreman. Although the precise instructions of the foreman were to pour the molten iron on-the sand near the sprue hole, to create a light, and on. this occasion it was so dark that plaintiff could not locate the sprue hole sufficiently to enable him to pour the '.metal near.it, yet, in view of such instructions and under all the circumstances disclosed by the record! now before us, it became a question for the jury as to whether he-was guilty of contributory negligence. - It would seem that if the plaintiff’s failure to light the gas jets in the vicinity of his floor, which he claims were- not lighted, contributed to the accident, he would not be entitled to recover; but there being a question of fact as to whether the gas was lighted, and the-contention of the appellant on this subject being, not that plaintiff was guilty of negligence in not lighting the gas, but that the failure to light the gas was not the proximate cause of the injuries or imputable to defendant, we refrain from deciding whether it should be held, as matter of law, that such failure constituted contributory negligence. • . The complaint, among other things, charged the defendant with, negligence in failing to properly light the foundry. After the court, charged the jury, defendant’s counsel requested the court to instruct the jury that they should disregard any question of defendant’s negligence arising from its failure to light the plant in any other way than it did; whereupon the court said: “I decline to charge as-requested, and give you an exception, but I charge you, gentlemen, that the defendant has provided proper facilities for lighting that-factory, and I leave the question of whether that gas jet was lighted or not; I leave it for you to say whether there is any negligence to be imputed to the defendant,” to which defendant’s counsel duly excepted. The effect of these instructions, which were the last given to the-jury by the court, was to convey, the impression that the defendant-might be held liable for negligence in failing to light the .gas jet,, regardless of any other question. This charge constitutes reversible-error. The duty of lighting the gas jets did not devolve upon the= master. The court charged, as has been seen, that the defendant, had furnished an adequate lighting plant. This constituted a full, and complete performance of the defendant’s duty in regard to-lighting. The course of business, as shown by the evidence, was. for the employees to light the gas when necessary. The failure to light the gas on this occasion was the negligence of the plaintiff or of his co-employees, for which the defendant is not liable. (Kaare v. Troy Steel & Iron Co., 139 N. Y. 369 ; Sharpsteen v. Livonia S. & M. Co., 3 App. Div. 148.) The record also presents some exceptions to medical testimony of questionable competency; but inasmuch as the error in. the charge requires that a new trial -be granted, upon which-the objectionable evidence may be avoided, we -do not deem it necessary to consider those exceptions. The judgment and order appealed from should be reversed and a new trial granted, with costs- to the appellant to abide the event- All concurred. Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.