(dissenting). In my opinion there was a prima facie-case made when this non-suit was ordered.
The plaintiff was the only witness testifying to the circumstances embracing the accident.
His narration was a brief one. He said he worked for the defendants in a building that was called a “ tail-house,” his function being to weigh the oil that came there through certain pipes. These are his words with respect to the accident: “ When I went into the tail-house I had a thermometer with me, and just as I was going to put it down there was a terrible explosion, like the report of a gun, and threw me out of the tail-house, and the cap from my head, and my hair and my beard and everything was burnt away ; I ran out, in my great fear, and the fire came flowing out of the building.”
With regard to the cause of the occurrence, he says it was occasioned by the bursting of a pipe. On cross-examination he was asked the question, “These pipes frequently get to leaking, don’t they ? ” and he answered, “ They don’t leak very often, but sometimes.” He further testified, “We have always gas in the tail-house.”
His further statement was that he saw some of his fellow-workmen near the point of accident, but did not know what they were doing.
*242This is all the evidence having any pertinence whatever.
Under this condition of facts, I think the matter ought to have gone to the jury.
The business was a dangerous one, unless carefully conducted. The defendants were bound to furnish, so far as possible, machinery and instruments appertaining to such business of approved strength and quality. So it was incumbent oh them to see that they were kept in that degree of repair that would result from the highest degree of care and attention.
It is not to be lightly inferred that instruments of the kind thus specified, and which had been thus supervised, would, in the absence of all known special cause, give way and burst under the ordinary pressure to which in the course of business they would be subjected, and consequently the bursting of this pipe, under such circumstances, would reasonably lead in the direction of a conclusion that it was in an imperfect condition. It is true that such conclusion would not, of itself, render the defendants liable, for such disruption of the pipe might have proceeded from a defect altogether inscrutable upon the most careful examination. But when we add to the fact of this explosion, so improbable in itself, in the absence of neglect, the further fact that their pipes had been leaking, more or less, and that there was constantly a smell of gas in their vicinity, it seems to me that there was plain proof to charge the defendants with the want of that high degree of care which the law exacted from them in an affair touching the safety or even the lives of their employes.
I cannot agree to the proposition, necessary to legalize this non-suit, that a manufacturer can leave pipes containing a combustible so explosive if it escape as to be dangerous to human life, in a leaky condition, and be exempt from all liability to account for such seeming neglect.
In my opinion, the facts as proved, unless explained or controverted, would have legally warranted a verdict against the defendants. I am, therefore, compelled to vote reverse this judgment.
*243For affirmance—The Chancellor, Dixon, Garrison Magie, Reed, Scudder, Van Syckel, Brown,-Clement Smith, Whitaker. 11.
For reversal—The Chief Justice. 1.