Appeal from Trial Term, Richmond County.
Action by Henry Paul, an infant, by Henry M. Paul, his guardian ad litem, against the Consolidated Fireworks Company of America. From a judgment for plaintiff, and from an order denying a motion for a new trial on the minutes, defendant appeals. Reversed.
In a suit for injuries caused by an explosion of a piece of fireworks in a fireworks factory by driving a nail into it, evidence held not to show actionable negligence in failing to furnish proper tools.
[117 N.Y.S. 699] Frederick W. Catlin, for appellant.
Frank H. Innes, for respondent.
Argued before HIRSCHBERG, P. J., and WOODWARD, BURR, RICH, and MILLER, JJ.
The plaintiff, a boy about 15 years of age, was lawfully employed by the defendant in one of its small buildings, the plant consisting of various detached structures, on the 27th day of March, 1907. The accident occurred in the finishing shop, a building 30 by 50 feet, and he was employed at the time in nailing small sticks to pieces of fireworks known as " geysers." These appear to be round pasteboard receptacles about 11 inches long and 2 inches in diameter, filled under hydraulic pressure with saltpeter, sulphur, and charcoal, the constituent elements of gunpowder. These geysers were made and filled in other buildings, and were then sent to the finishing room, where the plaintiff nailed on little sticks, about 7 inches long. These sticks had holes bored in them for the nail to pass through, and the point where the nail was to enter the geyser was indicated by a mark. The plaintiff put the nail-a sharp-pointed steel nail about an inch long, with a round head-through the hole in the stick, placed one of the geysers in a groove arranged for holding the same, and placing the nail point at the spot indicated, struck the nail a blow with a brass-faced hammer, the exact weight of which does not appear, but which had a handle only about 4 inches long. The nail did not go in at the first blow, and a second blow was struck, and at this instant there was a flash and an explosion, the plaintiff was seriously injured, and the building was consumed, resulting in the death of two other persons.
There is absolutely no evidence in the case to show what produced this explosion. There was undisputed evidence that the supposed contents of this geyser could not be exploded by concussion; that it could only be exploded by a spark. There was evidence that in doing the work small particles of the composition sifted out upon the table where the work was being performed, and that it was the duty of the plaintiff to sweep this up at intervals; but the evidence does not show that the explosion was due to the presence of this dust upon the table, and the most likely inference from the evidence, as we read it, is that the geyser itself contained some foreign substance, like a percussion cap or [117 N.Y.S. 700] a match, which was ignited by the stroke of the hammer, for the plaintiff, the only witness who tells how the accident happened, says that it seemed to him that the " geyser had burst-gone off." Of course, if this was the case, and the court so charged, there was no liability on the part of the defendant. But the plaintiff's theory, and the one which was permitted to go to the jury, after a denial of the defendant's motion for a nonsuit, to which an exception was noted, was that the accident was due to the use of a brass-faced hammer upon the steel tack or nail as it is called; that this contact produced a spark, which communicated with the dust upon the table. The plaintiff does not pretend that he saw any spark. The only possible evidence that a spark might have been produced is to be found in the testimony of an expert witness, one Southard. This witness, after qualifying generally, was asked to state:
" What is usual and customary, in the handling or using of gunpowder, with respect to the tools and implements used in connection with it? (This was objected to, as were other similar questions; but the ruling of the court is not in question here, so we will merely indicate the testimony.) Where gunpowder is used in manufacture, it is customary to use soft metals where force of any kind is applied to the powder, or to utensils holding the powder, or forms holding the powder. Why? So that there will be no spark produced by the striking of one tool against another. A brass tool or a copper tool is soft metal, and one soft metal upon another will not produce a spark."
The witness was then asked about his familiarity with nails such as were used, and, on his answering that he was familiar, the sample nail was put in evidence, as was also a geyser tube. The witness then testified to 25 years of familiarity with metals, etc., and was asked whether he was familiar with the effect of friction between metals, and, answering that he was, he was asked:
" And what is that effect usually, one metal being struck by another metal a violent blow?"
This was objected to as being vague and indefinite, and that the particular kind of metal should be named. The objection was overruled, with an exception to defendant, and the witness answered:
" The effect of iron or steel against iron or steel is to produce a spark. The effect of a soft metal, like brass, against steel or iron, is to produce a spark. The effect of one soft metal, like brass or copper, against brass or copper, is to produce no spark."
The witness was then asked if he was familiar with the usual and customary manner of handling gunpowder, with respect to the implements, tools, or other accessories in connection ...