Allison Mfg. Co. v. McCormick , 118 Pa. 519 ( 1888 )

Opinion,

Mr. Justice Williams :

The plaintiff below brought suit to recover damages for the loss of her husband, who was killed while in the service of the defendant company. Her case is a sad one, but her right to recover must rest un a legal liability of the employer or her-action must fail.

The evidence shows that the Allison Manufacturing Company is largely engaged in the manufacture of cars, and of tubing, in the city of Philadelphia, employing a large number of men. On the day of the accident a large wooden tank, some twelve feet in height by ten feet in diameter, used for storing water, for testing tubing and other purposes, was emptied of its contents and cleaned. Three men were then sent under the direction of the company’s painter, to cover the inside of the tank with paint. Of these, McCormick and another man were placed on the inside of the tank at the bottom, while the third was suspended on a float or cover above them and about four feet below the top. They were all supplied with paint, and the men at the bottom had also a lamp, described by the witnesses as a “railroad lamp covered with glass.” They had been at work for a quarter of an hour or more when an explosion took place, and the tank was for an instant filled with flame. McCormick was taken out last, and he died soon after from injuries received from the explosion and inhaling the burning vapor. This was the plaintiff’s whole case, except that evidence was given to show that benzine was used in the manufacture of the paint, and that an explosive gas could be obtained from it.

The only question presented is, whether this case should have been submitted to the jury. In considering this question it must be borne in mind that the paint used was a well-known brand called “ black varnish,” and that it has been manufactured in this city for many years and in large quantities. The evidence shows that the defendant company has used it for ten or twelve years, buying it by the barrel direct from the manufacturers. How, and under what circumstances, the explosion in the tank occurred is not known. The theory of the plaintiff is, that the quantity of benzine used in preparing the paint was so great that upon the opening of the cans and spreading the paint on the interior of the tank, the evaporation of the benzine filled the tank with an explosive gas, and that this gas came in contact with the flame of the lamp and exploded. Assuming this theory to be correct the plaintiff below argued that the employer was bound to know the composition of the paint, the effect of spreading it on the interior of the tank, and the danger to his servant by the explosion of the gas so collected. The defendant on the other hand asked the court to instruct the jury that there could be no recovery upon the evidence before them. The court declined to take the ease from the jury, but, with evident misgivings as to the propriety of so doing, left it to them to determine whether the employer, the defendant company, was guilty of negligence.

There was no conflicting testimony. The facts were free from difficulty. There is in tills case no legal presumption to take the place of proof of negligence or to shift the burden of proof. What is there then in the case of the plaintiff to show-want of care or failure of duty on the part of the defendant? The work to be done was the painting of the interior of a water-tank. The material employed was a well-known and commonly used brand of paint. It was purchased from the manufacturer ready for use. The laborers were sent to do the work under the direction of the company’s painter, who went with them, placed the -men, and gave them their directions. The paint had been in use by the public for many years, and by the defendant company for ten or twelve, without accident of any description. It is not easy to see what more could have been expected from an employer.

The general rule requires of the master that he provide materials and implements for the use of his servant, such as are ordinarily used by persons in the same business; but he is not required to secure the best known materials, or to subject such as he does provide to a chemical analysis in order to settle by experiment what remote and possible hazard may be incurred by their use. This rule is recognized in the recent case of Payne v. Reese, 100 Pa. 301, in which the present Chief Justice said that the “ duty of the master is to provide machinery and materials of an ordinary character.” So, also, in Crawford v. Stewart, 19 W. N. 48, which was an action to recover damages for injuries resulting from the falling of scaffolding upon which the men were at work, the master was held not liable. The reason is stated by Justice Paxson with his usual directness, in these words: “ There is no evidence that the men who erected the scaffold were not competent workmen, nor that they were not supplied with suitable materials.” The same rule is also stated in Lewis v. Seifert, 116 Pa. 628.

In the present case the work at which McCormick was employed was not a dangerous one. The place was not one that could be regarded as in any sense dangerous. The materials were those in common use for the purpose for which they were used by the defendant. The work was done under the supervision of a competent painter. The accident, happening under such circumstances was outside the range of ordinary experience, and one, therefore, against which the measure of care due from the employer could not protect the servant. To hold otherwise would be to disregard the well-settled law upon the subject and to make the. employer an insurer of the safety of his employee.

Judgment reversed.

Mr. Justice Stebeett dissents.