Second Departinent, December, 1916. [Vol. 175. lamp. If the insulation were worn from the wires or weakened the current could short-circuit from one to another and produce a spark sufficient to ignite the carbon disulphide. It also appears that the chemical would tend to dissolve the insulation and wear it off in a few minutes if the liquid came in contact with it. The chemist called was a person of reliability, and his testimony is not weakened by contradiction. He regarded the condition of the chemical as ideal for the purposes of easy ignition. Did the defendant know of the dangerous nature of the chemical? If so, was it using due care for its servants when, through the taxidermist, it allowed a gallon of the liquid to be poured over the objects in the case, on three sides of wood and plaster, and the glass front to be quickly closed? If it was not acquainted with its inflammable nature, was it dutiful in employing so copiously a chemical the peril of which it did not understand? If a prudent man would not expect exposure to contact with fire, there was no imprudence in using the mixture even in large quantities, as fire is needed to develop the danger. But there were two wires, each charged with electricity, and if in any way they made a fire, which came in contact with the gas, an explosion could follow. It appears that the gas tended to dissolve the insulation and bring forth short-circuiting of the wires, so as to create a spark capable of firing the gas. Would a man of skill and caution introduce an explosive quantity of gas under such circumstances? I think that a jury would be warranted in answering that question in the negative. If so, it could condemn an unskilled and uninformed man for so doing, inasmuch as his negligence would consist in so using a chemical of whose properties he was ignorant. But it is argued that there is no evidence that an electric spark did ignite the gas. But the gas could not explode without an igniting agent. The electric wiring and light was the only agent present. The liquid tended to expose it to the gas by dissolving the insulation. There can be no doubt of the source of the fire under the facts presented. But it is further urged that the defendant is not liable under the Labor Law. The notice is limited to the negligence of the defendant and its superintendent and foreman in charge of the work, in furnishing a highly explosive and dangerous disin App. Div.] Second Department, December, 1916. fectant and using the same in large quantities in close proximity to the plaintiff without giving him warning of its dangerous and unsafe nature and of the dangers to be encountered in aiding the work. That notice was dated August 27, 1914. The action was begun September tenth. Under date of September ninth the defendant demanded a further notice, identifying the superintendent or foreman, stating the cause of the explosion, what plaintiff was doing at the time, the nature of the disinfectant, and in what respect it was highly explosive and dangerous, in how large quantities used; and it was stated that the notice was defective in that it did not state any act of negligence for which the Labor Law (Art. XIV) affords a remedy. The plaintiff served additional notice after the action was begun. The notice and complaint show that the plaintiff regarded the chemical as self-combustible, but on the trial, by consent, the electric wiring and its dangerous condition were alleged as grounds of negligence on the part of defendant and its servants. But that left the notice dependent upon negligence in the quantity of disinfectant used, and that is not remedied even by the amendment to the notice, but the original notice is good as far as it goes and is not superseded by the notice served after the action was begun, so far as there is no inconsistency. (Oswald v. Underpinning & Foundation Co., 159 App. Div. 684.) But the original notice is sufficient, because the negligence could be found to be in using so large a quantity under the circumstances, or in using any explosive quantity near the electric lights, and the jury could, under the notice, find negligent use of an excessive quantity. The mere fact that the notice did not state that it was used in contact with electrical wires was a scientific fact that plaintiff did not know, but he did know that the taxidermist drenched the material and that an explosion followed. He was quite right in ascribing the explosion to the quantity, although he was ignorant that the danger of quantity was dependent upon the presence of the lights. The taxidermist was a foreman for the time. He had superior charge of the dangerous work, and plaintiff and his men were assigned to aid and obey him. Plaintiff says the superintendent had at other times directed him to take Rockwell's orders. In any Second Department, December, 1916. [Vol. 175. case, it is evident that he was under his direction as to the particular operation, and when the taxidermist told him to close the case, instant obedience was required. It is certain that unreasonable refusal to heed the command would have resulted in discipline by the employer. But, aside from the Labor Law, the plaintiff has an action at common law. It was the plaintiff's duty to assist at the service, and he had used the same material on other occasions, but did not know the danger of using it in large quantity where there was an electric current, especially running through two twisted wires, the insulation of which could be affected by the chemical so as to permit a shortcircuit. It was the duty of the master to know that, and to instruct as to the use of it, and to warn its agents and servants of the danger. But plaintiff was committed to the work unwarned. There was a latent danger dependent upon knowl-. edge of scientific facts, which it was the duty of the master to have and to impart to its servants. (Smith v. Peninsular Car Works, 60 Mich. 501.) Although plaintiff had served before in use of the chemical, here entered a new factor, and as to that a new and more perilous service was introduced and the plaintiff should have been instructed, although he was new only to the increased risk of the service. (Lofrano v. N. Y. & Mt. Vernon Water Co., 55 Hun, 452; affd., 130 N. Y. 658.) The manner of use was changed and a new element of danger introduced, and yet plaintiff was unwarned. (Ryan v. Chelsea Paper Mfg. Co., 69 Conn. 454, 458.) The case is illustrated by the general principles applied in Buckley v. Garden City Co. (127 App. Div. 52); Nichols v. Brush & Denslow Mfg. Co. (53 Hun, 137; affd., 117 N. Y. 646); Crapo v. City of Syracuse (183 id. 395, 403). The judgment should be reversed and a new trial granted, costs to abide the event. CARR, STAPLETON, MILLS and RICH, JJ., concurred. Judgment reversed and new trial granted, costs to abide the App. Div.] Second Department, December, 1916. EMILY WARNE, Respondent, v. THE BROOKLYN HEIGHTS RAILROAD COMPANY and BROOKLYN CITIZEN, Appellants. Second Department, December 22, 1916. Negligence-collision between street car and wagon injury to passenger by shaft of wagon puncturing side of car-evidence damages. Action by a passenger on a street car against the street car company and the owner of a horse and wagon for injuries caused by the shaft of the wagon puncturing the side of the car in which she was sitting during a collision at the intersection of streets. Evidence examined, and held, to justify findings of negligence on the part of the defendants, and that a verdict for $3,000 is not so excessive that it should be disturbed. APPEAL by the defendants, The Brooklyn Heights Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 6th day of May, 1916, upon the verdict of a jury for $3,000, and also an appeal by the defendant Brooklyn Citizen from an order entered in said clerk's office on the 25th day of May, 1916, denying its motion for a new trial made upon the minutes. D. A. Marsh [George D. Yeomans with him on the brief], for the appellant the Brooklyn Heights Railroad Company. Henry E. Heistad, for the appellant the Brooklyn Citizen. Vine H. Smith, for the respondent. THOMAS, J.: The plaintiff, a passenger on the car of one defendant, was injured by the shaft of a wagon of the other defendant puncturing the side of the car. The collision was at the intersection of Third avenue and Pacific street, in Brooklyn. The plaintiff was near the center of the car and on its left-hand side, towards which the horse and wagon were approaching. The defendant railroad company withdrew from the trial when the plaintiff had rested and its motion for nonsuit had been denied. Therefore, it is to be affected only by the record as it then was. The car was moving southerly and First Department, December, 1916. [Vol. 175. between points in different States at the said rate of three dollars ($3) per mile per year, although the plaintiff down to the present time has charged and is endeavoring to collect from the defendant for similar night service the same rate of twelve dollars ($12) per mile per year which it charged to all news agencies prior to said reduction. That as defendant is informed the telegraphic night service so actually furnished to others did not happen to be between the same points as those referred to in said contracts, but that each of said rates was, at the times alleged, charged and collected by the plaintiff irrespective of the location of the circuit or the distance between the termini thereof, and the total rental for such leased wire service given by the plaintiff either to the defendant or to others was based upon the said rates per mile and was determined solely by the number of miles of circuit used and the time and extent of such use as hereinabove alleged. That the night service furnished to other news agency or agencies as hereinabove alleged was a like and contemporaneous service to that rendered to the defendant and forming the basis of the causes of action hereinabove referred to, and was rendered under substantially similar circumstances and conditions; that there is a sharp rivalry between news agencies in the gathering of news as economically as possible and also in securing members and that the granting by the plaintiff of such reduced rates to other news agency or agencies while endeavoring to exact such higher rates from the defendant constitutes an undue and unreasonable preference and advantage to such other news agency or agencies and subjects this defendant to undue and unreasonable prejudice and disadvantage. "That by reason of the matters herein alleged, the payments provided for in each of said contracts are discriminatory and in violation of the Act to Regulate Commerce and that the said contracts, and each of them, have thereby become and now are wholly illegal and void, and cannot be enforced against the defendant." This same matter is alleged in the 7th paragraph as a partial defense. One of the causes of action in the complaint is under con |