(91 Hun, 184.)

#### O’DONNELL v. EAST RIVER GAS CO.

(Supreme Court, General Term, Second Department.

December 2, 1895.)

Injury to Servant—Defective Appliances—Negligence of Co servant.

Where a servant directed to clean out a boiler with a hose is injured by an explosion caused by the presence of naphtha in a pipe connected with the hose, which remained in the pipe because of a sag therein, and which the engineer should have washed out, the master is liable for failure to. furnish a proper appliance.

Appeal from circuit court, Queens county.

Action by John O’Donnell against the East River G-as Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $4,000, and from an order denying a motion for a new trial, defendant appeals.

Affirmed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

William J. Kelly, for appellant.

H. A. Montfort, for respondent.

BROWN, P. J.

This action was brought to recover damages for personal injuries sustained from the explosion of a boiler. The plaintiff was employed by the defendant as a day laborer, and upon the day of the accident was directed by a foreman of the defendant to assist in cleaning out one of two boilers standing side by side within a few inches of each other. The other boiler, at the time of the accident, was in use, working under a pressure of about 50 pounds, of steam. Plaintiff stood upon a platform, about five feet from the-ground, holding the nozzle of a hose, from which water was forced into the tubes of the boiler. Within a few minutes after commencing the work an explosion occurred, the plaintiff was thrown, to the floor of the boiler room, and received the injuries complained of. A similar explosion had occurred immediately previous, while-the engineer was engaged in cleaning the boiler with the same hose; but the plaintiff had no knowledge of that fact at the time he was-*289directed to perform the work. It appeared from the testimony that the hose used was attached to a fire hydrant, which was connected by a pipe with a steam pump. From this pump a four-inch pipe ran to the East river. This pipe and pump were used every two or three weeks to pump naphtha, from which the defendant manufactured gas, from boats on the river to a tank in the defendant’s yard. They were also used to pump water from the river, and it was customary, after pumping naphtha, to wash out the pipe by pumping water through it. As originally laid, the pipe drained to the river, but there was testimony that about half way between the pump and the river it had become sagged so that naphtha could stand in the pipe; and it also appeared that, after pumping, small quantities of naphtha would remain in the pump unless it was washed out. The engineer testified that naphtha had been pumped about a week before the accident, and that he had neglected to wash out the pipe before attempting to clean the boiler. The testimony permitted the conclusion that naphtha which had been permitted to remain in the pipe and pump was carried through the hose into the tubes of the boiler, and, there coming in contact with the heat from the other boiler, caused the explosion. The appellant’s contention is that this was due to the negligence of the engineer, who was a fellow servant of the plaintiff, and therefore the defendant is not liable for the result of the accident. A discussion of decided cases upon this branch of the law is never profitable. There is little room for disagreement as to the general principle of law applicable to the relation of master and servant. The difficulty always arises in their application to the particular case before the court. In our opinion, the evidence presented a case where the employer failed to provide the servant with a proper appliance or instrument to perform the work he was db rected to do. The plaintiff was directed to clean the boiler. The pump, suction pipe, and hose were the appliances with which that work was to be done. The defendant’s duty was to see that they were in a reasonably safe condition when they were delivered to the plaintiff. That duty could not be delegated. Whoever undertook it represented the defendant, and if it was negligently performed the defendant was liable for the result of that negligence. The rule applicable to the case is stated clearly in Fuller v. Jewett, 80 N. Y. 46-52, as follows:

> . “We understand the principle of these cases to be that acts which the master, as such, is bound to perform for the safety and protection of his employés, cannot be delegated so as to exonerate the former from liability to a servant who is injured by the omission to perform the act or duty, or by its negligent performance, whether the nonfeasance or misfeasance is that of a superior officer, agent, or servant of a subordinate or inferior agent or servant to whom the doing of the act or the performance of the duty has been committed. In either case, in respect to such act or duty, the servant who undertakes or omits to perform it is the representative of the master, and not a mere coservant with the one who sustains the injury. The act or omission is the act or omission of the master, irrespective of the grade of the servant whose negligence caused the injury, or of the fact whether it was or was not practicable for the master to act personally, or whether he did or did not do all that he personally could do by selecting competent servants, or otherwise to secure the safety of his employés."

*290We are of the opinion that the case was in all its aspects one for the jury, and. that the damages were not excessive.

The judgment must he affirmed, with costs. All concur.