12 A.D. 556 | N.Y. App. Div. | 1896
On the 2d day of November, 1893, the steam boiler in the defendant’s stable on East Fourteenth street, in the city of New "York, exploded with great violence. A considerable portion of the building in which the boiler was situated was torn to pieces by the explosion, and fragments of the boiler were thrown across the street with such force as to shatter the opposite buildings. Several persons were killed or injured by the explosion, and among those injured was the plaintiff, who brought this action to recover damages caused by the wounds he then received. After a trial of some length he recovered a verdict for $3,000. The defendant moved for a new trial upon the ground, among others, that the verdict was against the evidence and that the damages .were excessive, and that
The defendant is a street railroad company running a line of -horse cars over certain streets, in the city of Yew York. The buildings on East Fourteenth street, in which this accident happened, were occupied as stables. The stea'm boiler which éxploded was used' there for running an engine. The plaintiff was not employed in any way about the boiler, but he was a hitcher, so called, whose duties were to hitch up horses and take them outside to the cars, and to unhitch the teams attached to the cars when they arrived and put them in the stable. He had nothing whatever to do with the boiler or any occasion to be in the room where the boiler stood. So far as he was concerned, the boiler was neither an appliance fur.nished by the defendant for the plaintiff to use in his work, nor was it a tool in which he had any interest whatever. As to him, the obligation the law imposed upon the defendant with regard to this boiler arose out of its duty to furnish him a safe place in which to-do his work. His employment kept him in the building in which the boiler was situated, and, while it did not call upon him to work at the boiler or do any work which was connected with it, he was-still required to be so near the place where the boiler Was that, if the boiler Was not safe to use, it necessarily was dangerous for him to be in the place where his duty called him to be. As the defendant saw fit to keep the boiler so near the stables that an explosion-caused by a defect in it was liable to injure the plaintiff, as well as any other person whose duty called him to be within the limits liable to be affected by such an explosion, it was clearly within the place where the plaintiff was called upon to work, and its presence there imposed upon the defendant the duty of taking care that it was in reasonably safe Condition, in performance of its quasi contract. towards the plaintiff to furnish him a safe place to work in. The nature of that contract is well settled by the authorities.
The keeping of this boiler in the stables of the defendant was not the maintaining of a nuisance. It was perfectly proper that it should be kept there, because- the -manner of doing business required some means of furnishing power for the engine which it was neces
■ Bearing ill mind these rules of law, which are well settled, we are in a situation to examine the evidence for the purpose of seeing whether it was sufficient to present a question for the jury as to' the negligence of the defendant. It is not disputed that the" boiler was of good construction, made by reputable makers out of good material. It had been used ten years, but the life of a boiler, as appears from the testimony, is not to be determined by the number of years it has been in use. The witnesses say that a boiler may become so deteriorated as to be unsafe in five years, and it may' last for twenty-five years or longer under favorable conditions and with proper care. So far as appears, this boiler had received proper care from the engineer, and it is claimed, and not disputed, that the engineer who was in charge of it at the time of this accident was a competent man, properly certified, and who understood his business thoroughly. It is quite true that this certificate authorized him only to rim a boiler in Corlears street, but it is alleged, and not dis¡Duted, that it was not negligence for the defendant to. employ him to run this boiler as well, although the certificate applied only to a boiler in another building. The boiler was set in this building in 1883. At that time it was surrounded with 'brick work over its whole circumference and for its whole length, leaving no part of the boiler exposed except the two. ends and the dome. It seems that there was room underneath it, so that when it w-as not in use and when it was cold, one could go below it and examine the surface there, but whether that is so is" not quite clear, and it is not very important.
It is undisputed that no portion of 'this boiler, above, the bottom of the brick work, could be seen. After the boiler had exploded, it was' found that a portion of it, extending from the dome down to the seams on one side,'had been corroded on the outside next the brick work so seriously that the thickness of the iron, which originally had been five-sixteenths of an inch, had been reduced to about one-sixteenth. The explosion had occurred at this place in the "boiler, and it was this weakness which caused it to explode.
It is required by the Consolidation Act (Laws of 1882, chap. 110)
All these facts are undisputed. The plaintiff claimed that the weaknéss caused by the corrosion was not likely to have been discovered by the application of the hydrostatic test, and that, accordingly, the application of that test was not such an inspection as the defendant was called upon to make. He claimed further that the boiler should have been inspected by what is known among engineers as the hammer test, and that the application of that test would have enabled the inspector to discover the corroded place sufficiently to know that.the boiler was Aveak at that place and that it required more particular examination as to its safety.
These claims of the plaintiff were practically denied by the defendant, and the question litigated and submitted to the jury was, in the first place, whether the application of the hydrostatic test was a sufficient inspection to satisfy the duty which the defendant owed to the plaintiff, and if that were not a sufficient inspection, whether the. application of the hammer test would have enabled the defendant to discover the condition of the boiler, and that it was unsafe to use, and whether the hammer test was, in fact, applied with ordinary care.
Upon the first point there was evidence tending to show that this corrosion which weakened the boiler to the point of explosion had probably been the work of some considerable time, and that it must have existed to some extent at the time when the hydrostatic test
, The expert witnesses for the plaintiff, however, testified that steam pressure is exerted under such entirely different conditions from, those which existed when the hydrostatic test was applied that it •could not be presumed that a boiler which would bear 135 pounds pressure under the hydrostatic test would endure anything like that amount of steam pressure imposed under such different conditions. They were unanimous in their opinion that the hydrostatic test was not a proper mode of inspection to ascertain the safety of a boiler, but that some other test should be applied.
They also testified that the usual and ordinary test to be applied in such cases was the hammer test, and that even in the case of a boiler like this, and entirely inclosed as it was, the hammer test ■ might have been applied; and, if applied, it would have enabled a •competent inspector to discover this weakness of the boiler, which was on the side of the boiler and just below the upper surface of "the tubes..
. This téstimony was denied by the testimony of the defendant’s •experts. 'Their judgment was, in the first place, that the hydrostatic test was sufficient. They testified that it was . the usual and ■ordinary test, and that some competent inspectors relied upon it to the exclusion of any other. They said that, while the hammer test ■ was used, its use was not necessary to enable an inspector to discover the condition of a boiler. They testified, too, that in this particular case it would be impossible to apply the hammer test by reason of the narrow space between the tubes and the shell of the boiler; and that, if applied, the brick work with which the boiler was entirely
As we have seen, the duty of the defendant could not have been properly performed, unless it used the ordinary means of inspection which would enable it to áscertaiu the condition of the boiler. Whether the means which it used were the ordinary means, or whether other means should have been used, was the subject of conflicting testimony. So also there was testimony upon the question whether or not there might have been such a change in the condition of the boiler after the April inspection by the hydrostatic test, as that ordinary care would require a new inspection to be had subsequent to that time to say whether the boiler was safe. All these questions were properly submitted to the jury, and there was evidence, as we think, upon which it might have reached the conclusion which it did.
. But it is said by the defendant that, if the hammer test ought to have been applied, the plaintiff failed to prove that it was not so applied. The evidence upon that subject was the evidence of Dunbar, and Oolgan, who was a helper in the stable and who sometimes had assisted Armstrong, the engineer, about the boiler. The evidence of Dunbar was to the effect that Armstrong was a careful man, well acquainted with his duties, who took a great pride in keeping his boiler in good condition, and who spent all his time about the. boiler and the engine there and at Corleare street, where also was a boiler and engine of which he had charge. Dunbar testifies that at various times after the inspection in April, 1893, by the hydrostatic test,
That is all the testimony given by either side upon, the question whether Armstrong made any tests of the boiler or not. It is quite clear that the burden lay upon the plaintiff of showing that no proper tests were applied, and that before a verdict could be rendered, for the plaintiff the jury must be able to say that the facts existed from which an inference of the particular act of negligence could be drawn. (Cosulich v. Standard Oil Co., 122 N. Y. 118.)
It is quite true, too, that a jury will not be allowed to render a verdict establishing the negligence of a defendant upon a conjecture built upon a bare possibility, but that facts must exist which tend to show the existence of the negligence charged. (Pauley v. S. G. & L. Co., 131 N. Y. 90.) It is to be seen whether, applying this rule, the jury .would have been justified in finding that there was no sufficient inspection of this boiler by a hammer test, if they concluded that it was the duty of the defendant to use that test.
It appears that the boiler had been seriously weakened by the corrosion which undoubtedly existed. This corrosion had existed for a length of time which must be measured at least by months, and the effect of it'was to seriously weaken the boiler and unfit it to bear the strain which the ordinary steam pressure would impose upon it. , The jury might have found that the hammer test, pro2> erly a232>lied, would indicate that weakness. We must bear in mind that the question is whether the jury might have found that such a test was not applied. They could start in the examination with the facts stated above, and it was for them to say whether, U23©n the evidence,, Armstrong did not make that test or did. not make a proper test. The evidence upon the subject does not tend to show that
Negligence may be established, as is well known, not only by a determination upon disputed facts, but by inferences to be drawn from established facts; and the question is to be decided by the jury just as much, whether they must decide upon the facts or whether they must conclude upon the inferences which the facts warrant, if there is more than one inference to be drawn. (Hart v. H. R. Br. Co., 80 N. Y. 622, Shearm. & Redf. on Negligence, § 54.) Clearly, here it was a fair inference from these facts' that Armstrong did not go into that boiler for the purpose of inspecting it, and did not inspect it while he was there, and the jury might have found that to be the case. There was no pretense of any other inspection by the use of the hammer by any other person than Armstrong ; and so, if the jury found that Armstrong did not use that means of inspection, it necessarily followed that no such inspection was resorted to, and they might resolve that question, too, in favor of the plaintiff.
There was very considerable evidence bearing upon this question of inspection which has not been referred to in this opinion, but it has all been considered, and, as the result of it, we conclude that the disputed questions.with regard to the inspection were properly left to the jury, and that their conclusion was sustained by evidence which was given in the case.
There remain for consideration only the exceptions which were
It is claimed that the court erred in refusing to charge that, although there may have been negligence on the part of Armstrong, the engineer, by reason of which the boiler exploded, yet, even in. that case, the plaintiff would not be entitled to recover because Armstrong was the fellow-servant of the plaintiff. Under the facts of this case we think any such charge as that would have been error, and the court was correct in refusing to give it. While the general proposition of law is undoubtedly true, that the plaintiff assumes the risk of negligence on the part of a fellow-servant engaged in. the same employment, and cannot recover against his' employer for damages caused by that negligence, yet it is also true that many acts which a servant is called upon to do in the exercise of his employment he does as the representative of his master, and that for any negligence in such matters the master is liable, and as to those acts he is not a co-servant with a fellow-employee.' It is doubtful, whether, upon the evidence, any negligence whatever could have been predicated of Armstrong. If there could not, then there was no reason whatever for requesting the court to charge in regard to it. But if there was any negligence on the part of Armstrong, it was. only negligence in the inspection of the boiler. This inspection was a personal duty of the master (Pantzar v. The Tilly Foster Iron-Mining Company, 99 N. Y. 368), and in the performance of it. Armstrong acted as the alter ego of his employer. While he was. so engaged, any negligence was the negligence of the employer, of" w\kich the plaintiff, as a co-servant, did not take the risk.
One of the witnesses sworn on behalf of the plaintiff was Robert H. Thurston, who was shown to be an expert of great, experience in the inspection of iron and boilers. While he was. upon the stand he was asked whether he could ascertain with reasonable certainty from the inspection of corroded iron the length of time it had taken to bring the piece of iron in the boiler to any state of corrosion; to which he answered that he could not tell with pre
It is quite true that the witness stated shortly before the question was asked that he could not fix with precision the time which it would take to corrode iron as this iron was corroded, but he also stated that it would take a considerable length of time,, or, as he expressed it, “ months; ” and he had, before that, stated upon his examination facts which render it quite certain that he was able, as he said he was, to express all opinion with some certainty, not as to the particular length of time which it had taken to corrode the iron as it was corroded, but as to the time during which this corrosion must have existed, although it did not necessarily follow that it had not existed for a considerable length of time before. • It did not follow, because the expert witness could not precisely fix the time which would be taken to corrode the boiler, that he could not say that at any particular time such a state of corrosion, or some corrosion, did not exist. This was plainly the-distinction in the mind of the witness, and it is one; which is reasonable and might fairly be supposed to exist; and it was not error to permit him to answer the question when it had been made to appear, as it was by this testimony, that he could answer it with considerable approach, to accuracy.
The witness Duston, who was also shown to be an expert inspector of boilers, and accustomed to examine iron for the purpose of ascertaining’ its condition, was also asked by the court if he was able to state the least time it must have taken to produce the corrosion exhibited upon that plate under any circumstances. Upon which
In the course of the trial the plaintiff offered in evidence certain' pules of the sanitary bureau of the police department regulating the manner of investigating the qualifications of persons who were candidates for certificates as engineers, and prescribing the rights of persons who had received a certificate of qualification. Strenuous objection was made to the admission of these rules hy the defendant's counsel, and it is now urged that they were not material and ought to have been excluded. It appeared upon the testimony that "the certificate which had been given to Armstrong, the engineer, .authorized him simply to take charge of and operate a steam boiler at Corlears street, and contained nothing as to authority to operate "the boiler in question, nevertheless, it was conceded, that Armstrong, without any other certificate than this one, operated both boilers. The rules in question prescribe the manner of examination for the qualification of engineers and the form of the certificate to be given, and contained a statement that the certificate thus given authorized the engineer by whom it was received to take charge of and operate a boiler mentioned in the certificate, and no other. It was said that this provision of the rules was beyond the power of the p>olice department, and imposed a limitation upon their certificate which the statute did not authorize, and for that reason it was error to admit the rules in evidence, and this error was prejudicial to the ■defendant.
We do not think it is necessary to consider this point, because the ■court, at the request of the defendant’s counsel, charged the jury that, Armstrong having been licensed after examination to operate ¡steam boilers in the city of Hew York, it was not negligence on his part to operate, or on the part of the defendant to employ him to operate, the boiler on Fourteenth street as well as on Corlears
Assuming, although we do not decide, that this evidence was . irrelevant, it is not every .case of the' admission of irrelevant evidence Which will require the reversal of a judgment. Where the evidence does not excite the passions and prejudices of the jurors, but is practically colorless in its nature and only harmful for the reason that the fact proven by it is entirely immaterial, or that it is not available to prove a material fact, a direction by the judge to disregard the evidence, or a direction by the judge that the fact proved by it is of no importance, and that that fact must be disregarded, cures the error, if there is any. When, therefore, the jury were told that it was not negligence on the part of .the defendant to permit Armstrong to operate this boiler on Fourteenth street, it is plain that no harm, resulted to the defendant from the admission of these rules, which prescribed that he should operate no other: boiler than the one mentioned in his certificate.
The defendant put upon the stand as an expert Dr. • Chas. E. Emery, who gave material evidence upon the various points. in the case. During his cross-examination his attention was called to certain books on the design, construction and operation of. boilers, one written by Charles A. Smith and another by Prof. Thurston, who was one of the plaintiff's experts, as to which he answered that he knew of those books and that they were standard works on engineering subjects. Dr. Emery had testified that, in his judgment, the hydrostatic test was very effective, and that the hammer test was, in his judgment, inefficient and insufficient. In view of that testimony, certain passages from the two books above mentioned as to the efficiency of the hammer test were read to him, and • he was asked whether or not he agreed with what was stated in those passages. This testimony was objected to as immaterial, and, the objection having been overruled, an exception was taken. We are
The plaintiff’s counsel requested the court to charge as follows: f‘ The inspection of the boiler was the duty of the defendant. Had such duty been carelessly and negligently performed, even by a competent inspector, the master would still be liable. To excuse him from liability, the boiler must have been carefully inspected by a competent inspector and at reasonably frequent intervals.” To this charge, given at the request of the plaintiff’s counsel, the defendant
.We have examined the other exceptions taken by the defendant upon the trial. Many of them are already disposed of by what has been said; and, as to the others, we do not think that they are well taken. The judgment must, therefore, be affirmed, with costs.
Barrett, Patterson, O’Brien and Ingraham, JJ., concurred.
Judgment affirmed, with costs.