Kenz v. Bernheimer & Swartz Pilsener Brewing Co.

Stapleton, J.: The plaintiff’s eyesight was impaired by fumes of wood alcohol. The fumes were produced by the application of varnish to the interior surface of appellant’s beer vats. The varnish contained fifty-eight per cent of methyl alcohol and forty-two per cent of shellac. This combination throws off fumes. The vats are circular in form and vary in size. The smallest are ten or twelve feet in height and eight or ten feet in [778] diameter. They are without opening, except that at the base there is a manhole two feet wide and two feet high, and at the top there is a bung hole two inches in diameter. These openings furnish the only outlet for the fumes, and are inadequate to liberate them naturally. There is in general use a mechanical device, known as a blower, which is operated by electricity, and which ventilates the vats while the work of varnishing the interior surface is in progress. Its purpose is to prevent injury to persons engaged in that sort of work from the poisonous effects of the alcohol fumes. The plaintiff recovered a verdict against his employer Lutz, and against Bernheimer & Swartz Pilsener Brewing Company, which is the sole appellant. The plaintiff served a notice under the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 201, as amd. by Laws of 1910, chap, 352). The appellant owns and conducts a brewery. Beer vats are a part of its plant. It desired to have the interior surface of the vats varnished. It is necessary to do this work at frequent intervals. The defendant selected and furnished the varnish; it knew the danger confronting a varnisher when varnishing without proper ventilation; it was familiar with the device, in general use, designed to produce such ventilation; it elected, for purposes of its own, to have the varnishing done without the use of such device; it contracted with one Lutz to do the work; it supplied no blower. Lutz employed the plaintiff as a varnisher. Lutz used no blower. Upon this state of facts the trial court submitted the question of the appellant’s negligence to the jury. The theory of the submission was that if the jury found the facts in favor of the plaintiff, liability was established under the provisions of section 200 of the Labor Law (as amd. supra), which, in so far as applicable, reads: “If an employer enters into a contract, written or verbal, with an independent contractor to do part of such employer’s work, or if such contractor enters into a contract with a subcontractor to do all or any part of the work comprised in such contractor’s contract with the employer, such contract or subcontract shall not bar the liability of the employer for the injuries to the employees of such contractor or subcontractor, caused by any defect in the condition of the [779] ways, works, machinery, or plant, if they are the property of the employer or are furnished by him, and if such defect arose, or had not been discovered or remedied, through the negligence of the employer, or of some person intrusted by him with the duty of seeing that they were in proper condition.” The state of facts presented upon the trial and herein outlined brings the case, in our opinion, clearly within the scope of this statute. The vats are part of appellant’s plant. (Lipstein v. Provident Loan Society, 154 App. Div. 732.) The appellant supplied the place to work and the material with which to work. The material was inherently dangerous to the health of the workmen unless applied with certain aids that are customarily used. Appellant did not supply those aids or see to it that they were supplied. It was in fact for its own purpose hostile to their use. A vat with a blower applied is a safe place to do the work. Without the blower applied the vat is unsafe and defective because there is lacking an apparatus essential to the safe prosecution of the work. The injury to an employee of a contractor with whom the appellant entered into a contract to do part of its work was caused by a defect in the condition of the plant, the property of the appellant and furnished by it. We have examined the exceptions upon which the appellant assigns error and have concluded that no reversible error was committed. The judgment and order should be affirmed, with costs. Jenks, P. J., Carr and Putnam, JJ., concurred; Thomas, J., read for reversal.