It is conceded that the questionof the freedom from contributory negligence of plaintiff’s intestate was one of fact for the jury. The negligence of defendant is based upon the claim that it had failed to properly clean out and ventilate a still used for the distillation of resin after it was last used, in consequence of which there was an explosion of gases, which were contained in the still, causing injuries to plaintiff’s intestate which resulted in his death. It was admitted that carbo-hydrogen gases are produced by such distillation and that these gases are explosive in character. It was also established, by uncontroverted evidence, that after the residuum which settles in a still during distillation cools off, no explosive gases are generated. On the day of the accident plaintiff’s intestate and a companion went upon defendant’s premises for the purpose of making .some repairs to said still. At. that time the cover was on and there was a substance around the edge of it like clay to make it airtight. Defendant’s employees removed the cover and, upon being assured by defendant’s .superintendent that there was no gas in the still, plaintiff’s intestate entered it, struck a match for the purpose of lighting a candle to see what was to be done, and the éxplosion instantly followed. The evidence established that the still had been last used some nine or ten weeks prior to the accident. If the evidence were equally clear that after such use the still had. been cleaned out and .properly ventilated, we think that plaintiff would have failed to make out a case. The evidence upon that point is not of that character. That the still did contain explosive gases was conclusively established by the fact of the explosion. The testimony of the witness Wagner, called by tlie defend*363ant, was to the effect that in all his experience cbvering many years he had never known an explosion when the cover of the still had been left off for twenty-four hours after they had ceased to use the still and the still had been cleaned out. The proper way to clean it was to leave the cover off for about that period of time and then, after the residuum cooled, with a long-handled spade scrape it from the sides of the still. The only witness who testified to the fact that the cover had been taken off after the still was last used and the residuum spaded out was McGoldrick. He at first said that he did not spade out the still. Afterwards he said that he did. He did say that the cover was off on that occasion for twenty-four hours, but he failed to state when it was taken off or when it was replaced. The fact that if it was removed and the still spaded out this was done about ten weeks before the accident when there was nothing to particularly impress upon liis mind the performance of this work, that it was work in which he was constantly engaged, and the further fact that he was responsible for the accident if the still had not been properly ventilated and spaded out, made it necessary that the accuracy of his testimony should be submitted to the jury. He was an interested witness. His testimony that he had spaded out and ventilated the still was contradicted by the two physical facts, fii'st, that an explosion did occur and, second, that an explosion would not occur if he had done as he said that he did. The only other witness called by the defendant was McGuire. He says that he did not spade out the still, and it does not appear that he ever saw any one spading it out. He says that he saw the cover off “ after-wards.” He evidently assumed that the still had been spaded out because he saw the cover off, but he did not see the work being done and could not tell how long the still was left uncovered. The gas was in the still and it exploded. ■ If the gas would not have been there if the still had been properly cleaned, the fact of the explosion raises an issue, and it was for the jury to say whether the witness was mistaken in saying that he had cleaned it ont.
The judgment and order appealed from should be affirmed, with costs.
Hirschberg, P. J., Thomas and Rich, JJ., concurred; Woodward, J., read for reversal.