(78 Hun, 454.)

#### BERNARDI v. NEW YORK CENT. & H. R. R. CO.

(Supreme Court, General Term, First Department.

May 18, 1894.)

1. Master and Servant—Sate Appliances—Delegation op Duty.

A master cannot escape liability for failure to furnish safe appliances to his servant by delegating such duty to a servant.

2. Same —Evidence.

In an action against a railroad company by an employe thereof for Injuries caused by an explosion of dynamite during transportation on a flat car for use on defendant’s line, there was evidence that packages of dynamite were ignited by sparks from the engine, and that Are would sometimes cause dynamite to explode. *Held,*that it was a question for the jury whether defendant exercised due care in furnishing a safe means to transport dynamite.

Appeal from circuit court, Hew York county.

Action by Antonio Bernardi against the New York Central & Hudson River Railroad Company for personal injuries. The complaint was dismissed, and plaintiff appeals.

Reversed.

Argued before YAH BRUHT, P. J., and FOLLETT and PARKER, JJ.

Arthur Furber, for appellant.

D. W. Tears, for respondent.

FOLLETT, J.

This action was brought to recover damages for personal injuries caused by an explosion of dynamite on one of defendant’s cars near Tarrytown on the 19th of May, 1891. The cause of action alleged in the complaint is that the defendant negligently loaded and carried on a car in its train, near the locomotive, a large quantity of some highly-explosive material, which was wholly unprotected, and, by reason thereof, exploded, causing the injuries complained of. It is not alleged that the defendant neglected to furnish a suitable car for the transportation of this explosive, or that it neglected to prescribe and enforce some particularly necessary rule regulating the time and mode of transporting it. However, the record does not show that any question was raised over the sufficiency of the complaint to permit a recovery for the defendant’s neglect to discharge duties which a master owes to Ms employes. The defendant, by its answer, admits that an explosion of blasting material occurred on one of its cars on the date alleged, while being drawn by a locomotive over its *231road, but denies that it was negligent, and alleges that the accident was caused by the negligence of the plaintiff’s competent fellow servants, and by his own negligence, or by the concurrent negligence of the plaintiff and of his fellow servants. When the plaintiff rested, the defendant moved that the complaint be dismissed on four grounds: (1) That no cause of action had been made out; (2) that no negligence on the part of the defendant had been shown; (3) that the negligence, if any, was that of the plaintiff’s fellow servants; (4) that the plaintiff had not shown that he was free from contributory negligence. The motion was granted. The plaintiff excepted, and also requested that the case be submitted to the jury on the issues of fact presented by the evidence, which was denied, and an exception taken.

It is well settled that there are certain duties which a master owes to his employes, and among them is the duty to exercise proper care to furnish suitable machinery for doing the work in which employes are engaged. It was the duty of this defendant to exercise due care to provide proper cars and means for transporting this powerful explosive over its road, and it cannot escape liability for damages caused by the failure to exercise such care by delegating its (the master’s) duties to an employe of inferior grade, who happened to be a colaborer with the person injured. This rule is settled by Flike v. Railroad Co., 53 N. Y. 549; Crispen v. Babbitt, 81 N. Y. 516; Benzing v. Steinway, 101 N. Y. 547, 5 N. E. 449; Hough v. Railway Co., 100 U. S. 213; Wilson v. Merry, L. R. 1 H. L. 326,—and does not need to be elaborated.

This brings us to the question whether the evidence was sufficient to have authorized the jury to have found that the defendant neglected to provide a safe car for transporting this explosive. The nature of the explosive was described by the manufacturer, who was called as a witness and testified”:

> ■“Nitroglycerin is the basis of it [Ajax powder], with other things as an absorbent. Its commercial name is dynamite. It is put up in cartridges. I think these cartridges were eight inches long by about one and one-quarter in diameter. The cartridges are made of paper submerged in paraffine, and then filled with this dynamite, and the ends closed up. It is a very explosive substance. It is discharged by a cap. Heat will sometimes discharge it, .and sometimes not. Concussion discharges it. The explosion of the cap is a concussion, and it is exploded by a cap. We do not allow smoking around where dynamite is kept. We prohibit it. We prohibit men carrying matches, and all that sort of thing. We prohibit anything that is apt to ignite from being around where dynamite is. Q. (the Court). Would it [dynamite] explode from contact with live sparks,—coal sparks? A. No; I think not. If dynamite got on fire, it might explode from the heat of the fire after a time; at first it would burn. We have had explosions in our works; that is, they have had the powder bum up, and the people got away without having an explosion. The powder was in cartridges. I cannot say what degree of heat you can apply to cartridges before they will explode. We have known a whole car load to burn up without exploding,—twenty thousand pounds. That would be where there was plenty of space in the open air; but if you should confine it in this room, and set it afire, where it would not get plenty of air, the oxygen would soon be exhausted, and it would go up. It would explode. And, if there were detonators or caps there, they would -explode by the heat of the fire, and they would explode the dynamite if they were in direct contact with it. This Ajax powder was harder to explode *232than nine-tenths of the powder we made. It was made especially for the New York Central & Hudson River Railroad Co., under instructions from them to have it made with as great care as possible.”

Such was the character of the explosive used as described by the person who made it for the defendant. At the time of the accident, the defendant was, and for some months before had been, engaged .in constructing a third track between Spuyten Duyvil and Sing Sing, arid in the work it used the explosive above described, which was manufactured for its use. For some months before the accident, the plaintiff had been employed by defendant on its tracks, but his work had no connection with blasting or with the employes engaged in that work, or in running the work train. Prior to May 19, 1S91, about 30 workmen had been engaged in blasting and removing rock at Dudley’s Grove, which is about seven miles south of Tarrytown. At this place there was a powder shanty, in which dynamite was stored, which was near the track, but how near does not appear. These employes,' known as “Finnegan’s Gang,” on the morning of May 19th, began work just south of the village of Tarrytown, and between six and seven miles north of Dudley’s Grove. After working two or three hours, they were directed to get on board the work train, consisting of a locomotive and one open flat car, on which they were carried to Dudley’s Grove, where they loaded upon this flat car the dynamite stored in the powder shanty, together with the tools and materials which they had used at that place. The undisputed evidence is that between 20 and 30 boxes of dynamite cartridges were loaded on the car. Every one of the boxes was about 12 by 24 inches iri size, containing cartridges 8 inches long, by about 1J inches in diameter. There were also 23 or 24 packages of caps, detonators, or exploders, which were used for exploding the cartridges. These exploders were loaded on the front end of the car, on top of the dynamite, some of them being covered' and others not. After the car was loaded, the workmen got on to .it, and the train started for Tarrytown. Two witnesses, who were uncontradicted, described what occurred on the trip:

> “The car went about three miles and a half before anything particular-happened. Then the powder took fire, and they exploded. I saw what caused the' powder to take fire. The particles of coal coming from the smoker stack of the engine lighted the powder, and caused the explosion of the other boxes. * * * I saw the sparks fly from the engine, and light upon parts of the load upon the car. They all put the collars of their jackets up-to prevent the sparks from striking- them. The particles of- coal fell all over the load. I was riding about in the middle of the car. The front part, near the engine, took fire.”

' Another witness testified:

> “The explosion took place a quarter of a mile before getting to Tarrytown. Just before the explosion, I saw particles of coal coming from the smokestack of the engine, and they burned our clothes. Particles of coal fell upon-our coats, and one of my companions told me it was burning his coat, and he was just taking it off when the explosion took place. ■ I did not see any fire upon the car before the explosion. I did not see any sparks from the engine fall on the boxes. (Plaintiff’s counsel, addressing defendant’s counsel): Will you admit that the explosion took place from the sparks of the engine? A. *233I have not any doubt that the explosion took place after the sparks came from the engine and lit upon the contents of the car. I am not prepared to-dispute that, and there is no use piling up evidence of that fact.”

From this evidence the jury might have well found that the explosion was caused by the sparks from the locomotive, and they might have found that the defendant did not exercise due care to furnish safe means for the transportation of this explosive. It cannot be held upon the evidence, as matter of law, that this plaintiff contracted to incur the risks incident to the transportation of this quantity of dynamite over the road on which he was employed, in the manner described; and if it shall be found as a fact that the car used was unsafe and unfit for the transportation of this explosive, and that the defendant negligently permitted it to be used for that purpose, the plaintiff will be entitled to a verdict. The care- and diligence required of a master to furnish safe machinery and materials for the service in which they are used depend on the exigency of the case and the dangers incident to the business. It is apparent, we think, to all, that employes and inhabitants on the line-of the railroad, and passengers on its trains, would be exposed to great perils by the explosion of such a quantity of dynamite; and the care which defendant was required to exercise to prevent such an occurrence should have been commensurate to the liability of the article to explode and the dangers to be apprehended from an explosion. Upon principle and authority, it was a master’s duty— the defendant’s duty—to exercise great care in furnishing safe means, for the transnortation of this explosive; and, under the evidence, it was a question of fact whether it used such care on that occasion. There is no evidence that the plaintiff in any way contributed to the accident or its results by any act or omission of his own. The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.