#### Bert Butler, Appellant, *v.*Henry Steers, Incorporated, Respondent.

Second Department,

June 6, 1913.

Master and servant — negligence — injury by bursting of water gauge — proof raising question for jury.

Where in a common-law action against a master to recover for injuries to the plaintiff’s eye, caused by the fact that having been directed to replace the broken water gauge of a boiler by another glass which had *324been formerly used and was discolored and which exploded when replaced, the evidence shows that it was dangerous to use an old glass owing to checks in the annealing, etc., which impaired its strength, etc., the master’s negligence is for the jury.

Burr and Stapleton, JJ., dissented.

Appeal by the plaintiff, Bert Butler, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 8th day of February, 1912, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Westchester Trial Term, and also (as stated in the notice of appeal) from an order entered in said clerk’s office on the same day denying the plaintiff’s motion for a new trial.

*Theodore H. Lord,*for the appellant.

*E. Clyde Sherwood [Amos H. Stephens*with him on the brief], for the respondent.

Rich, J.:

This action was brought to recover for personal injuries. When the plaintiff rested his case the learned trial court dismissed the complaint, and this appeal is from the judgment accordingly entered and also from an order denying his motion for a new trial.

I think the exceptions to the refusal to permit the plaintiff to go to the jury present reversible error.

The action was based on the common-law liability of the master. Plaintiff was a fireman in defendant’s employ, having charge of four boilers, and had been in this position eight or nine months before his injury. He took his orders from one Patwell, an engineer and defendant’s foreman in the power house where plaintiff was employed. Bach of the boilers was provided with a glass water gauge, and it was not uncommon for the tubes to break, and when such accidents happened it was the appellant’s duty to replace the broken gauge with a new one which would be given to him by the engineer and foreman, Patwell. On the morning of the accident two of the boilers, Nos. 3 and 4, were in use. The gauge on boiler No. 4 became broken, and the plaintiff went to Patwell for a gauge with which to replace the broken one. He was given one that *325had been used before; it was rusty and discolored from such use. Patwell said to clean it and put it back, “ it would do until we got the new ones.” He says he called Patwell’s attention to its dirty and stained condition, and was told that it was the only gauge he had in stock and to clean it up and put it on the boiler. Plaintiff did as directed, and before he reached the bottom of the ladder which he used in installing the gauge it exploded, and pieces of glass were blown into his eyes, causing the injury for which he seeks to recover. It was established by uncontradicted expert evidence that it is dangerous and unsafe to use a gauge which has been previously used to the extent of staining and discoloring it with sediment deposited on its sides, one of the results of which is to cause checks in the annealing of the glass which weakens and to some extent destroys its resisting strength, which checks are intensified and extended by removing the gauge and laying it aside for awhile; that when put in use a second time and subject to a high steam pressure, as the result of its uneven heating due to the adhesive sediment on the inner portion of the tube, preventing the heat from reaching the glass uniformly and causing an unequal expansion, the effect upon it is to make it still weaker and make it break. From this evidence the jury might have found that the accident "was in consequence of the failure to provide proper and safe water gauges and in furnishing plaintiff with an improper gauge which was likely to explode when used upon a high pressure steam boiler. A question of fact was thus presented which should have been submitted to the jury. In view of the fact that there must be a retrial, it might be wise to call attention to the fact that we are unable to find any evidence upon which the hypothetical question to Mr. Southard was based, to wit, that the tube had “ been used for a period of at least two weeks.”

The judgment and order should be reversed and a new trial granted, costs to abide the event.

Jenks, P. J., and Thomas, J., concurred; Burr and Staple-ton, JJ., dissented.

Judgment and order reversed and new trial granted, costs to ' abide the event.