Stewart v. New York, Ontario & Western Railroad

We do not see anything in this case which shows contributory negligence on the part of the intestate. It was a cold day, and it was not unreasonable that he should approach a fire. Whether or not he knew that at that moment there were cartridges in the pail, we cannot tell. He had been directed with others to get a pole for a pike pole. He and they got them from the drift. There was no work to do until the blasting had been done. Stewart, the deceased, seems to have been waiting for an opportunity to work, or, perhaps, as another witness had done, he was trimming his pole. That, under such circumstances, he should go within some five feet of a fire where a man was working is no such conclusive evidence of negligence that we can disregard the finding of the jury on that point.

The important question is on the negligence of. the defendant.

This cannot be determined upon the rule that the master must furnish a safe place to work. For Stewart was not set at work on the fire. His work was to be the pushing of the broken ice after a blast. And it would be a forced application of the rule to say that a place was unsafe because an unforeseen explosion happened near it of cartridges temporarily brought there. Hussey v. Coger, 112 N. Y. 614 .

The learned justice who tried the case held that this work of thawing out the cartridges was the work of the master; that if the master was not exercising the care commensurate with the evidence of danger, it was liable. And he submitted

It is proved that the cartridges did not explode from being dropped. Some cause must have existed, and there was no cause but the fire. In what way this happened cannot be told: whether from the escape of nitro-glycerine from the cartridges, or from some sudden blazing up of the flame over the edge of the pail, or in some other way.

Now, while the testimony shows that dynamite is often thawed in pails of hot water, yet it is evident that generally this is not done over a flaming fire. Even the witness who speaks most confidently on this subject, and who testifies that he has often done this very thing, says that there should he an arrangement to move the pail from one point to another and graduate the heat, and further says that the water should not boil. It is quite apparent that a fire of such materials as were used in this case, out of doors, might heat the part of the pail above the water, or might even touch the part of the cartridges above the water. As the cartridges rose above the water and rested against the side of the pail, they were possibly ignited from the heat of the pail or from flame.

The case is not quite analagous with that where some implement or contrivance is used, and precisely similar implements or contrivances have previously been used many times with safety. When witnesses show that cartridges have, in former instances, been thawed in pails over fires, it by no means follows that such fires were similar to that used on this occasion. It might be safe to put an explosive cartridge in a pail of water over a moderate fire of coals, while it might be very unsafe to do this over a fire which would produce a flame, and that, too, out of doors, where the flame might be blown by the wind. In other words, one fire may differ so much from another fire that we cannot say that it is

In stating the duty of the master the learned justice said it was his duty to furnish competent employees and reasonably safe appliances. This is substantially the rule stated in Pantzar v. Tilly Foster I. M. Co., 99 N. Y. 368 , at 372, viz.: “ adequate and suitable tools and implements ; skillful and competent workmen to direct his labor and assist in the performance of his duties.” This rule is not changed by Stringham v. Hilton, 111 N. Y. 198 .

The man who had charge of the business the day of the accident was Crandall, a stone mason. He had never heard that cartridges exploded with heat, and never had any instructions about handling dynamite. He had thawed dynamite by putting cartridges into heated water. He once saw a man put cartridges in the water in a pail and put the pail on the hack part of a cook stove in which was a light fire.

Brehany, who alone was at the fire when the accident happened, knew nothing about dynamite until Flynn instructed him a day or two before. Flynn did not tell him to put the cartridges in carefully; but told him. not to drop them in the fire.

Flynn says that from his experience the cartridges would not explode from heat; but he adds that he understood it would take from 300 degrees to 500 degrees Fahrenheit to explode dynamite. A range of 200 degrees on such a point does not indicate accurate knowledge.

Dicks, who directed Flynn to thaw the cartridges, told him to he careful, but gave him no instructions how to do it. Yet he says it required a great deal of judgment to tend the fire, with water and cartridges in it. Yet he did not learn whether there was danger in its getting too hot.

The defendant argues that no special skill is required to handle dynamite. Perhaps not, but care and judgment were needed, such as might be gained by experience and knowledge of what might cause an explosion.

The question to a witness whether he had thawed “ rend-rock,” was not improper. “ Rend-rock” is a kind of dynamite.

Devine was a practical chemist who had made a study of explosives. We have examined the questions put to him to which the defendant objected. We think they came within the line of admissible expert testimony.

The court was asked by defendant to charge that the question before the jury was not one of science, and he so charged; but being in doubt as to the meaning of the counsel he gave an opportunity for explanation. There was no error in this.

We think that there was no error in the charge ; which of course must be taken as a whole.

It has been justly said that the line of division between the duty of the master and that of the operative in such cases as this is difficult to define by any general description. Webber v. Piper, 109 N. Y. 496 . But it seems to us that an operative has a right to expect that the master will entrust the handling of dangerous materials only to experienced and careful workmen and that the methods employed shall be such as are reasonbly safe.

Putnam, J., concurs.

(dissenting).—The plaintiffs intestate, and the men avIio handled the dynamite, were all engaged as co-laborers, and were all co-employees of defendant in one job of work." There was an ice jam in the river which disturbed the convenience of defendants. The work to be done Avas the removal of that gorge of ice, so that the river Avould clear itself and thus relieve defendants’ road-bed. The means to be used consisted of axes, pike-poles and dynamite. The undertaking was a hazardous one to the persons employed. There was no safe place about it. EArery means used and every place in the surroundings was dangerous to the lives and limbs of the persons engaged. Each of the persons avIio accepted employment on the job knew and could plainly see all this ; and each man Avas bound to maintain careful discipline according to the nature of the work and the means to be used, and to avoid all unnecessary exposure, if he cared for his own safety. It does not appear that any unskilled or incompetent persons were employed, or indeed, that there was any occasion for men of particular skill, either in handling of the dynamite or in any other part of the work. If the plaintiff is entitled to recover, it must be on the ground that the men who handled the dynamite were careless and negligent. Then it is clearly a case of negligence of a co-servant employed in the same common undertaking and business. In such case the employer is not liable. There is no case reported Avhere a recovery against an employer has been sustained for an injury to an employee occasioned by the negligence or carelessness of a fellow-workman engaged in the same particular job of work. The contrary has repeatedly been held and seems to be a well-settled rule. Crispin v. Babbitt, 81 N. Y. 516 ; McCosker v. Long Island R. R. Co., 84 Id. 77 ; Besel v. N. Y. C & H. R. R. R. Co., 70 Id. 171; Beilfus v. N. Y., L. E. & W. R. R. Co., 29 Hun, 556 ; Deforest

The correct, well-defined rule applicable to cases of this kind, is expressed in the opinion of the court in Laning v. N. Y. C. R. R. Co., 49 N. Y. 521 , as follows : “ A master is not liable to those in his employment for injuries resulting from the negligence, carelessness or misconduct of a fellow-servant engaged in the same general business; nor is the liability of the master enlarged when the servant who has sustained the injury is of a grade of service inferior to that of the servant or agent whose negligence, carelessness or misconduct caused the injury, if the services of each in his particular labor are directed to the same general end. And though the inferior in grade is subject to the control and directions of the superior whose act or omissions had caused the injury, the rule is the same.”

“ Nor is it necessary, to exempt the master from a liability, that the sufferer and the one who caused the injury should be at the time engaged in the same particular work; if they are in the employment of the same master, engaged in the same common work and performing duties and services for the same general purposes, the master is not liable.”

In this case, every man employed by defendant on the work was a co-employee of every other person so employed. If one of the employees handling pike-poles had been careless and injured another, the employer would not be liable, even if the person injured was the man who handled the dynamite. Not more so is the employer liable, because the negligence came from the man who had charge of the dynamite. When a person engages in a dangerous business, he takes the risk of it. Every means used and every place in the surroundings was dangerous to the lives of the persons engaged. The rule that the employer must find a safe place for his workmen does not apply in such cases. Some kinds of business are never safe, and there is no safe place connected with them. Any undertaking which involves the use of the dan

It is, however, said that the employment of the plaintiff’s intestate had no connection with the use of the dynamite ; that his duties were on the river with the pike-poles; and the means used to loosen the ice by the explosive force was a separate business.

Suppose, for the sake of the argument, we concede this to be so, then the defendant owed the employees engaged on the river no duty, so long as the disaster did not come from the careless use near the men while on the river.

Stewart had no invitation to go to the spot where the dynamite was prepared for use. The defendant’s agents were doing that work about 150 feet away from the work on the river, where Stewart’s work called him. If he had left the place of his duty and went without invitation to the place where the dangerous explosive was, he put himself in the way of it and thus brought the misfortune upon himself.

Finally. Whether there was negligence upon the part of the workmen who were engaged in thawing the cartridges may have been properly disposed of by the jury ; and yet it is difficult to see how the charge of negligence on the part of defendant’s agents is sustained, except upon the principle that any error of judgment or any deviation from absolute perfection in the handling of that class of dangerous goods ought to render the party liable if somebody is hurt by it.

But without deciding this question the judgment should be reversed.

Judgment affirmed, with costs.

It is the master’s duty to employ only competent men. Coppins v. N. Y. C. & H. R. R. R. Co., 122 N. Y. 557 . Competent man, defined. Id.

As to when the jury cannot infer the company’s negligence from the fact of employing a telegraph operator of seventeen years of age. Sutherland v. T. & B. R. R. Co., 125 N. Y. 737 .

The master is bound to use reasonable care to provide and employ competent and skillful servants, and to discharge on notice or knowledge, or the means of knowledge, any who fail to continue such. Tonneson v. Ross, 58 Hun, 415 . This rule was applied in the case of an injury to an employe whose captain, who was also in the service of the defendants, caused the accident while he was in a drunken condition. Id.

An employee may rightfully expect his employer to entrust the handling of dangerous materials to experienced and careful workmen, who shall use methods reasonably safe. Stewart v. N. Y., O. & W. R. R. Co., 54 Hun, 638 ; see also, Wall v. D. L. & W. R. R. Co., 54 Id. 454.

The master owes the duty to his servants of employing skillful and competent workmen, where these are needed to direct their labor, or assist in the performance of their work. Sweeney v. N. Y. Steam Co., 15 Daly, 313 . The servants have a right to assume that only such workmen are employed. Id.

To render a master liable for an injury sustained by his servant through the negligence of a fellow-servant, in a common employment, it is not enough to show that the latter had fallen into habits Sf intoxication, which rendered him incompetent to a proper performance of his duty. Chapman v. Erie R’y Co., 55 N. Y. 579 . To render the master liable, where the servant was of good character and proper qualifications when retained, notice of his subsequent evil habits must be brought home to him. He has a right to rely on the presumption that the character and qualifications, once possessed, continue until he has notice to the contrary. Id.

See also, Warner v. Erie R’y Co., 39 N. Y. 468 ; and Laning v. N. Y. C. R. R. Co., 49 Id. 521 .