(dissenting):
Upon a former appeal it was urged with great force that the plaintiff, a boy of fifteen years of age, had been injured through the negligence of the defendant in providing a brass-faced hammer to drive a steel nail into a piece of'fireworks known as a geyser, the theory being that the contact of the brass hammer with the steel nail had produced a spark, and that the spark had communicated with the combustible dust upon the workbench- and had caused an explosion of the geyser. The judgment in favor of the plaintiff was reversed. A second trial has been held, and it is now conceded that the former theory was without merit. The second trial proceeded upon the theory that the explosion was occasioned by driving a steel nail into the geyser, which consisted of a pasteboard receptacle filled with á compound of saltpetre, sulphur and charcoal, subjected to a heavy hydraulic pressure. A witness who described himself as a consulting engineer, and who appears to have had considerable' experience in constructing powder mills, and who had worked in such institutions as a foreman, testified that an .explosion of this compound might be produced by the friction of-driving a nail into the same, but he gave no reason for this view, nor did he attempt' to show that his opinion was based upon any experiments conducted under similar- circumstances. There was - some evidence that some other concerns used brass nails for the' purpose of fastening the stick to the geyser, but there was not a particle of evidence that this was done because it was any safer to use brass nails than steel nails, nor was there any evidence that brass nails would not produce the same amount of friction that would be produced by steel nails, and the.case is barren of any evidence that ally one at any time ever heard of a similar, accident under like circumstances, or that anything had ever occurred to warrant any reasonable-minded man to believe that there was any danger to be apprehended from the manner of fastening the stick upon these geysers. On the contrary, it appears from the uncontradieted evi*784deuce in this case that these geysers had been manufactured under precisely similar circumstances for a period of five or six years in large quantities, and that no accident of the kind had ever been known in the factory where the plaintiff was injured. It appeared, likewise, that' for more than twenty years it had been the practice in this same factory to drill into these geysers with a rapidly revolving steel 'drill, so that there was very little reason for the master to anticipate that friction would explode these geysers, and this, taken in connection with the fact that after driving-steel nails into these' geysers for five or six years, no one had ever heard of an accident resulting, left a situation which on the 27th day of March, 1907, left no substantial duty of the master unperformed. There is no evidence whatever that tlie geysers which were manufactured in other factories, and which are alleged to have been completed by using brass nails in the place of s.teel nails, were filled with the same compound, nor is there any evidence in this.case, assuming that friction would explode the contents, that the nail which the plaintiff was driving • at the time of the accident ever reached the same. The evidence is that the pasteboard receptacle was about half an inch thick, and about two inches in diameter, pressed so that it was nearly as substantial as papier inache; that the plaintiff placed the nail in the proper place and struck it a single blow, which did not send the nail home, and that he then struck another hard blow, and the .explosion followed. For all that the evidence discloses, the nail may not have gone straight into the tube; it may have passed to the side and never reached beyond the pasteboard covering. It is all conjecture; no evidence whatever from which we- may know whát caused the explosion. . There is even a lack of evidence that the geyser itself exploded in the first' instance, and to say, under such circumstances, that there was such a danger as the master was bound to anticipate and guard against, when all the ingenuity of brilliant counsel, aided by expert testimony, is not able to point out after the accident what actually occurred, is to go beyond the bounds of reason, and to make the master an insurer. The theory on which' the action was originally tried negatived the idea of the geyser itself exploding in the first instánee*' while the one now under review assumes, without, proving, that it did explode when the nai) ■'was *785hit a second time. What causéd the explosion is left entirely to conjecture; no one pretends to say that any experience ever justified the opinion that the driving of a small steel nail into the geyser would cause such an explosion under normal, conditions, and no abnormal conditions chargeable to the master or to any one else are shown. It is j ust as plausible to say that the brass-faced hammer produced a spark by striking the steel-headed nail as it is to say that after five years of practical experience to the contrary, on this one occasion, the friction produced by driving the nail into the compound caused the geyser to explode. All we have is the fact that the plaintiff, in the ordinary routine of his work, which he had performed for some time, placed a nail in the proper position, hit it one stroke of his hammer and" then followed it by a second blow, and that some kind of an accident happened. Whether there was a spark outside of . the geyser, communicating to the combustible dust which had accumulated, or whether there was an explosion of the geyser itself growing out of the stroke of the hammer, nowhere appears; and until it was definitely known, or until there was some evidence warranting a jury in determining that some particular result had been produced, no question was presented for a jury to determine. How are we going to say that the master, who is presumed to have done his duty, has failed in the performance of a duty until we know at least what has resulted ? We know that the plaintiff was injured, but" we do not know whether the injury was the result of an explosion inside or outside of the geyser; whether.it was due to some foreign, substance accidentally mingled with the explosive compound, or to friction or to a spark produced by a. blow of the hammer. It is quite as likely that in some manner a match or a percussion cap had fallen into the mixing tub and been transferred to the geyser when it was filled, as that the explosion could have been due to friction, after years of experience to the contrary. All that can be fairly said of the evidence is that-it. suggests á possibility that the explosion was caused by friction, but I know of no rule which' requires a master to anticipate a bare possibility, and one which practical experience has never suggested to any one.
The judgment appealed from should be affirmed, with costs.
Judgment reversed and new trial granted, costs to abide the event,