The plaintiff appeals from a judgment of the Trial Term of this court dismissing his complaint at the close of his case. It was the second trial of his action. The first trial resulted in a judgment of $10,000 in. his favor. That judgment Was reversed by this court and a new trial ordered. (Paul v. Consolidated Fireworks Co., 133 App. Div. 310.) On the new trial so ordered the trial court was of opinion that the evidence presented'by the plaintiff failed to make out a cause of action within the rule declared by this court in its opinion on the appeal from the first judgment,' and, accordingly, dismissed the complaint on defendant’s motion. The question now presented for decision is primarily whether our former decision covers the facts presented in the record now before us. Before' considering this question in its details, it.is well to note that , the present-record differs-from the former. in a very important distinction. On the first trial, both parties tried out their respective cases. The appeal from the resulting judgment presented questions both of fact and of law, and this'court was authorized to, and did, pass upon both. Here, however, the question presented is practically one of law, to be determined upon the assumption that the plaintiff’s evidence is true, and that he is entitled to the most favorable inferences that *778may be drawn- properly from the facts-lie has proved. The action is that of a servant against a master to recover- for personal injuries alleged to .have been caused by the, negligence of the master. The defendant was'engaged in. the business of malting -fireworks. The plaintiff, at the- time of the accident, was a mere, lad of fifteen years of age, and had entered into the service of the defendant about a year-and a half before. One of the articles made by defendant for fireworks display. Was- what is called in this case a “ geyser.” Its nature was that of a- thick compressed paper cylinder filled with an explosive- powder compound, which, when ignited by a fuse-, emitted from its top a-shower of brilliant sparks. In order to assist-in its usé for the purpose of display, a short and .narrow -.piece of wood was .secured to a side of . the cylinder by one nail, which was inserted through the wood, through a hole previously prepared, and then driven through the paper cylinder into the composition filling to its full léngth, which was about one inch.. To drive the nail home, a brass-headed hammer wras used*, and it required usually, two strokes of the hammer to complete the driving, although at times threé strokes were necessary. The composition filling the cylinder was puf in by hand with á scoop,, and then submitted to an hydraulic, pressure of nearly two tons, thus compressing the mass within the cylinder to a compact- and hard consistency, as the cylinders: were in length but from four to seven inches, and the diameter of the interior was but one inch. The pressure . w.as applied through a ■ ram which ’ fitted- closely the ■interior surface of the paper cylinder case. The composition, so compressed, was a mixture of saltpetre, siilphur and - charcoal in-defined proportions,, the various substances ' having, been, mixed . together in a tub by hand and finally run through a sieve, which 'was of ten meshes to -the-inch.. The plaintiff had nothing to do with making the mixture, nor filling the cylindrical case, his sole duty at the' time'of. the accident being to secure-the piece of wood to the already-filled cylinder in the manner -above indicated. The .nails furnished, by the defendant, for such use were made of steel wire, with a point of irregular shape. The plaintiff had been at w.oi’k all morning at. his bench, nailing these sticks to '.the geyser cylinders. , The bench was. of wood,- .with its table,covered in places ■ by zinc, galvanized iron. and sheet iron. Or this surface had accu*779mulated a small quantity of the explosive compound,'which had escaped from the cylinders in the process of handling and nailing, and which lay on the table in the form of a fine dust. The accident happened in the afternoon. The plaintiff undertook to affix á stick, to one of the geyser cylindershe put the nail through the hole in the stick, and started to drive it into the cylinder at a spot marked on the surface for that purpose. At the second stroke of the ham- ' mer the nail appears to have struck something hard, and the blow of the hammer was followed by a flash of flame from the cylinder, an explosion of the cylinder, and consequent serious injury to the plaintiff. The story as to the happening of tlie accident was the same on both trials. The explanations offered as to its cause differ essentially. On the first trial the pláintiff set out to prove that the explosion had been caused through a spark resulting from the forcible contact of the head of the brass hammer with the head of the steel wire nail, and that this spark had communicated itself to the explosive compound lying on the table, .and through quick ignition had caused an explosion. On the first trial the undisputed evidence' was that the compound in the “ geyser ” could not be exploded by concussion, but only by ignition caused by a spark, or a flame. Hence, the then necessity of accounting for a spark. The claimed negligence of the defendant was then that in furnishing for such use steel nails to be driven by a brass hammer, it failed to use ordinary care, for, according to the common knowledge of people handling explosive compounds, there was a constant danger of the generation of a spark from the forcible contact of steel and. brass, and that to avoid such danger common prudence would require the use of nails made of brass or some soft metal. It. was on this theory of causation that the question of defendant’s liability was submitted to the jury on the first trial. - This court reversed the judgment then obtained on the ground that there was no proof that, in fact, any spark resulted from the blow of the hammer on the head of the nail, and, therefore, no proof that the explosion had been caused through the use of unfit tools furnished by the defendant; This court evidently regarded the claimed causal connection of the hammer head and the nail head as.too speculative to amount to the dignity of the proof required to establish liability under the facts of the case then before it. On the new trial, however, a new theory *780. of the accident has been presented. It is not sought to account for the explosion on the theory of a spark generated outside the cylinder by the blow of a brass hammer on the head of a steel nail, and the learned counsel-in his brief disclaims such a cause for the acci- ■ dent, frankly-declaring that, in his opinion, the expert evidence on the first trial to that effect was based upon a clear mistake. «Nbw the plaintiff seeks to account for the explosion of the cylinder by an ignition of the explosive compound within the cylinder, resulting from heat caused' by friction following from the forcible- contact of the steel nail with the .hard mass of the compound. He. gave proof to show that the compound was highly explosive, more so than blasting powder, and readily explosive under friction resulting from the contact of steel Being driven into it forcibly. There was proof that the steel nail could produce friction enough to generate ignition and consequent explosion ; and proof that in other places where geysers were made the use of steel nails was purposely avoided because of this fact. Assuming that it was proved that in the use of steel • nails, for the purposes above described, there was always present.the danger of an explosion resulting from friction and consequent, ignition, arid that such danger could be reduced to some extent by the use. of nails made of a softer metal,-and by a lubrication of the explosive by graphite, can-it be declared as a matter of law that a master who has. handled explosives for.twenty years or more, has exercised reasonable care for the safety of his servants in omitting lubrication of the explosive grains and in furnishing tools in the use of which there is necessarily inherent so grave a danger ? Unless this question can be answered in the affirmative, then the learned trial court erred in dismissing the complaint on the record now before us. All of the facts assumed in the foregoing question appear established, for the-time being, in the proofs presented by the plaintiff on this trial. In endeavoring to present his proofs, some,questions asked by plaintiff from his expert witness, as to the. common knowledge ' of the properties of steel and explosives in the trade, and as to the . nature and measure of the friction engendered, were excluded, upon objection by the defendant, and. erroneously so. Yet there remains' . in the case proof • of all the facts thus assumed. It seems to me quite clear that the question presented was not one of law, but one - of fact for the jury. It is true that it appeared that the defendant *781had been using steel--wire nails for five or six years without an accident, but if a probable danger of an accident was always present, and reasonably obvious to the master, then his past freedom from actual casualty does not in law amount to a justification of ■ the continuance of such conduct; it is simply an element for the jury’s consideration.
As was said by Cullen, J., in Latorre v. Central Stamping Co. (9 App. Div. 145): “ The fact that no -previous, accident of this character had happened does not relieve the master, from liability, provided the accident was such that the probability of its occurrence might reasonably have been foreseen. ■ We think this accident of such a character. The danger of igniting the turpentine from inserting the heated metal was one that should have been anticipated by a person having the technical knowledge on the subject that the master must have possessed.” The case there was one in which a lad of. fourteen was set at work dipping heated metal spoons into a bath of turpentine. It is true, of course, that a master is not an insurer of the safety of the servant; nor is there any legal duty imposed upon him to use the most approved tools and appliances, even though some others may use-them, and that his legal duty is fulfilled when he furnishes tools which are reasonably safe" when handled with due care. There is in this case no suggestion of lack of Care nor- assumption of risk on the part of the plaintiff. The question of reasonable care on the part of the master varies with the surrounding circumstances. What would be due care in a carpenter shop might be gross negligence in a powder mill. Whether the tools in question were reasonably ■ safe, considering all the circumstances, including the nature of the risk, is primarily a question for the jury. I'recommend, therefore, that the judgment be reversed and a new trial granted, costs to abide the event.
Thomas, J., concurred in separate memorandum; Jenks and Rich, JR, concurred with Garb, J.; Woodward, J.,' read for affirmance. .