#### DICKESCHEID v. BETZ.

(Supreme Court, Appellate Division, First Department.

February 6, 1903.)

1. Injury to Employe — Contributory Negligence — Evidence.

Evidence in an action to recover for the death of an employe, caused by the explosion of fumes arising from varnish which he was using, examined, and *held-*that, contributory negligence by deceased was conclusively shown.

Laughlin, J., dissenting.

Appeal from trial term, New York county.

Action by Eva Dickescheid as administratrix, against John F. Betz.

From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O’BRIEN, and LAUGHLIN, JJ.

Theodore H. Lord, for appellant.

Abram I. Ellcus, for respondent.

*176McLAUGHLIN, J.

Action to recover damages for the death of plaintiff’s intestate upon the ground that the same was caused by defendant’s negligence. The intestate was an employé in defendant’s brewery, and while engaged in varnishing the interior of a cask was fatally burned by an explosion of the fumes arising from the varnish. The cask was of about too barrels capacity, and from time to time it became necessary to varnish the interior of it. There was an opening in one end, through which persons who did the varnishing entered. The process of varnishing consisted of two persons entering the cask through this opening with a lantern, which was then suspended from a hook in the top of the cask.. The fumes which arose from the varnish were such that it required the persons doing the work to place a sponge over their noses and mouths. It usually required from io to 15 minutes to varnish a cask of this capacity, during which time no one was permitted to go near it. The work was such that the persons were obliged to stay in the cask until the whole of it had been varnished, except a small portion around the opening, which was not completed until after the men had gone out of the cask and the lantern removed, and then that was completed by the person standing on the outside, and extending his arm and hand into the cask. On the 26th of November, 1898, the plaintiff’s intestate and one Roos were directed by defendant’s foreman to varnish the interior of certain casks of the capacity already referred to. They entered upon their w'orlc, and had completely varnished one cask, and so far finished the second one that they had gone out of it and removed the lantern therefrom. When Roos came out of the cask, he handed the lantern to the intestate, and went upstairs (the casks were in the basement of the building), and very soon thereafter an explosion occurred, and the intestate ran upstairs with his clothing in flames, and was so severely burned that he died shortly thereafter. Upon going into the basement, the lantern was found intact, inside the cask, except the flame was extinguished. The interior of the cask was scorched or blackened. No witness was produced as to just how the accident occurred, or what was the cause of it. The plaintiff was nonsuited, and the question presented is whether or not, upon the facts stated, a case was made for the jury. The appellant contends that it was for the jury to say whether the defendant had furnished the intestate with proper appliances and a reasonably safe place in which to do his work; or, in other words, whether the death of the intestate was due to the defendant’s omission to furnish some other means for lighting the interior of the cask while it was being varnished. The lantern used on the occasion had been in use since 1892, and, so far as appears, no accident had ever occurred similar to the one in question, except in one instance, and that was prior to the time the defendant acquired the brewery. That there were other or better appliances did not necessarily obligate the defendant to use them, because he discharged his full duty if the one which he did furnish was reasonably safe and suitable for the work, and such as a prudent man would use if he were doing the varnishing himself. Burke v. Witherbee, 98 N. Y. 562. However, in view of the fact that there was evidence tending to establish that there were *177other and better appliances which might have been, and some of which were, in general use, taken in connection with the evidence that it would take from 10 to 15 minutes to varnish a cask, and that sufficient heat could be generated by the lantern used in 15 or 20 minutes to ignite the vapor, we were of the opinion that it was a question of fact for the jury to say whether or not the defendant was negligent in using the lantern. But, assuming this to be true, it does not aid the plaintiff. The evidence is uncontradicted to the effect that the defendant had a rule, of which the intestate had knowledge, that, after the cask had been varnished inside, and the workmen had taken the lantern out, it was not to be again put into the cask. Here, as already stated, the work had been so far completed that Roos and the intestate had gone out of the cask, and taken the lantern with them. After the explosion, the lantern was found inside of the cask. Therefore, if it be assumed (and there is no evidence of it) that the lantern caused the explosion, it was by reason of the intestate’s own negligence in violating defendant’s orders in putting the lantern back into the cask. Roos, when he went upstairs, handed the lantern to the intestate, and no one was permitted near the cask, as already said, except Roos and the intestate, and therefore the jury could not have found otherwise than that the lantern was put back into the cask by the intestate; and this finding would necessarily have required them to find, in view of defendant’s orders, if the lantern were the cause of the" explosion, that his own negligence contributed to his injury.

For these reasons we are of the opinion that the judgment appealed from should be affirmed, with costs. All concur, except LAUGH-LIN, J., who dissents.