Gozzett v. Plaut

121 A.D. 513, 106 N.Y.S. 161, 1907 N.Y. App. Div. LEXIS 1820

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 11, 1907
• Status: Published

Opinion

Gaynor, J.:

' This case should have been dismissed. The negligence alleged,' and on which, the verdict is based, is that the defendants should have furnished a glass vessel instead -of. a tin one in which- to compound the alcdhol and phosphorus, The theory on. which the case went to the jury.was that a particle or some particles of phospliorns had adhered to the upper part of the inside of tlie vessel, the tin can, from its previous use, and ignited from the oxygen in the .air which went into the'can as the water was. poured out, .exploding the -vapor of -the alcdhol which had been poured in. It was claimed by the plaintiff that if the vessel-had been of glass the plaintiff could have seen any such particles; on the, inside, and .'would have, rinsed them out before the alcohol was poured in. It. was also said that such particles would be less likely to ádheré to a smooth surface, like-that, of glassy than tó á rough' surface. There is .no evidence -that the inside of the.tin can was rough. The inside of a tin vessel'is ordinarily polished and smooth. The evidence is that water would separate any particles of phosphorus in' the. vessel,-artd that they would come out with the water poured from it. The can stood tilled with water when not in use. The plaintiff testified that he knew that particles of phosphorus would ignite from the oxygen in the ah*. It was therefore his duty to use due care to rinse the can out, and if necessary swab it out before using it; for he represented himself to be a compounder of drugs, and must be held to know that the vapor of alcohol will explode from contact with flame.. Who knew it if he did not ? If such knowledge cannot be attributed to him it cannot be attributed to his employers. He had worked at the craft of compounding drugs for 18 years. He Was skilled in it. There is no evidence that tin vessels are not ordinarily used by manufacturing chemists for the use to which this one was devoted. Two witnesses said they had seen glass flasks used in a laboratory. The defendants were not required by law to furnish the best known or conceivable' appliance, but only such as was reasonably safe and suitable. The one furnished was perfectly safe if properly cleaned before being usedand vessels in which drugs are compounded have to be scrupulously cleaned. Moreover, the plaintiff never asked for a glass vessel or complained of the tin one. He was as competent to know whether a tin one was dangerous as any one, and it was his duty to tell his employers that it was dangerous if he knew it was or believed it was (Burke v. Witherbee, 98 N. Y. 562; Sweeney v. Berlin & Jones Envelope Co., 101 id. 520; Harley v. Buffalo Car Mfg. Co., 142 id. 31).

The judgment, and order should be reversed.

Jenks, Hooker,. Rich- and Miller, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the final award of costs.