56 N.Y.S. 780 | N.Y. App. Div. | 1899
The action is for damages for alleged negligence in causing the death of the plaintiff’s intestate. The deceased was in the employ of the defendant as a fireman,.' and at the time of the accident which caused his death had been in such service about seven years. The ' defendant had in its power house a horizontal tubular boiler of the Babcock & Wilcox make. In this style of boiler the water is in the tubes. ' At the ends of the tubes there are caps fastened to the tubes each by a bolt and nut, so that they may be removed and the tubes opened whenever desired. From time to time it became necessary, to clean the boiler, in' which case the caps were removed. The fre-. quency of cleaning the boiler varies according to its use. Some boilers have to be cleaned as often as once a month; others not oftener than once a year. A day or two before the accident, the defendant’s engineer, who had general charge of running the engine in the power house, had. the boiler cleaned. After this work was done, the deceased, under the direction of the engineer, replaced the caps. Water was run into the boiler and the fire started. The ■engineer testifies^ that he then told the- deceased to go behind the boiler and see if there were any leaks. A workman, one Wolvern,. gave evidence that the engineer directed the deceased to go under the boiler to the mud drum. The deceased went under the boiler,, and while there one of the caps blew off, thus permitting the steam to escape. Deceased was-so injured by the escaping steam that he ■died, oirthe following day. It w'as conceded on the trial that the-boiler was of proper design and style, and that its parts were in good condition, but evidence was given by' experts for the plaintiff, tending to show that the replacing and fastening of the caps was a work requiring considerable skill; that the bolt being in a horizontal.' position, its weight, tended to make it sag, and that it was a work of great difficulty to have the threads on the bolt fit exactly into the threads of the nut, and that if the bolt was not exactly in the proper place the torsional strain in screwing it up and tightening the cap was liable to injure and weaken the bolt.' They testified that for this reason whenever the caps were taken off and replaced, the boiler should be subjected to a hydrostatic test before it was attempted to make steam in it; that this test would show whether the caps were on tight, and whether the bolts . had been weakened;
It is the duty of a master to use reasonable care to provide for his servant a safe place to work and safe appliances to work with. The case before us, however, is neither one of an unsafe place nor that of a defective appliance, The boiler is conceded to have been suitable in design, and in good condition. The theory of the plaintiff is that, the accident was occasioned by the injury to the bolt which occurred in fastening the cap to the tube. As it appears that in the ordinary operation of these boilers it is necessary from time to time to- remove the caps and replace them, the replacing of the caps must be considered á detail of .the work in which the deceased was employed. ( Webber v. Piper, 109 N. Y. 496.); If there was any negligence in the manner of replacing the caps, it was the negligence-of the deceased himself, for it was he who did that work. But it is-, contended that the straining and weakening of the bolts in replacing the caps was a thing likely to occur even when the work was. prosecuted with the greatest skill, and .could not be prevented by care; that for this reason it was requisite after the caps • were, replaced to subject the boiler to a hydrostatic test. There was-evidence to support this claim, and the jury could have so found..
But granting that a hydrostatic test should have been made, the. question then arises, whose fault was it that the test was not had ? It is undoubtedly the duty of the master, besides providing a safe-place and safe appliances for his servants, to establish reasonable-rules for the conduct of his business, so as to protect his servants-from unnecessary danger (Abel v. D. & H. Canal Co., 128 N. Y. 662); but this principle must be applied with reference to-the character of the work prosecuted, and with reference to the. known duties of the employees. When a master employs a competent -engineer to run an engine, he is no more required t-o give him instructions as to the rudiments and common knowledge of his-
The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event. -
All concurred.
Judgment and order reversed and now trial granted, costs to abide the event.