The defendant is a distiller of crude oil. In the process of distillation a large amount of gas is generated. Some of it was used for fuel, and the remainder was designed to escape into the running-room, which was at all times dangerous, if a lighted candle was brought there when the machinery was in operation. One of the stills needed repairs. The mechanic
*602and the plaintiff’s intestate went into it with a candle, and there was an explosion, and both men were instantly killed. The deceased intestate was not a mechanic, but a common laborer, and was ordered in the still by White, the mechanic, but he had worked with White before in and about repairing the stills, but whether he had been in the habit of' going or ever went into the still is not proven. It appears that gas from the other stills in use, of which there were some 12 or 13, will return back into the empty still in process of repair, and that this result was occasioned by the absence of a stopcock. This result would not be occasional and doubtful, but would happen with absolute certainty. The place in which the deceased -was put to work was not a safe place. A servant takes the risk of the employment, but he has the right to rely upon the performance of the master’s duty. The rule of duty is explained by the court of appeals in these words: “ The rule is unqualified that a master is bound to use all reasonable care, diligence, and caution in providing for the safety of those in his employ, and furnishing for their use in his work safe, sound, and suitable tools, implements, appliances, and machinery in the prosecution thereof, and keeping the same in repair. ” Bushby v. Railroad Co., 107 N. Y. 374, 14 N. E. Rep. 407; Benzing v. Steinway, 101 N. Y. 547, 5 N. E. Rep. 449. The master cannot delegate the performance of this duty to another, and escape liability, on the ground that the neglect was the neglect of the employé, and ignorance of the defendant in the instrumentality will not excuse. Ellis v. Railroad Co., 95 N. Y. 546.
If the accident could have been prevented by the exercise of proper care, it is negligence in the master not to have avoided the danger. Contributory negligence is generally a question for the jury. If the deceased had the right to assume the performance of his master’s duty, there is no ground upon which he can be charged with negligence on his part which contributes to the injury. He went in the still at the request of the mechanic, White. It is true that he had refused before to go in unless White went in «first, but his suspicion was removed by the fact that on those occasions no accident happened. The inquiry made of the witness Esdale was proper. He testified that for the entire two years that he had worked in defendant’s distillery there 'was always gas in the running-room,—the room connected with the still in question. The conversation with McCormae was proper. He was defendant’s superintendent, and in respect to the question at issue was the master. The judgment, therefore, is supported by evidence which makes out a liability against the master, and should therefore be affirmed, with costs.
Pratt, J., concurs.