Glossen v. Gehman, Appeal, No. 141

Appeal, No. 141 | Pa. | Mar 21, 1892

Opinion by

Mb. Justice Gbeen,

On the trial of this case it was proved by the testimony of H. A. Keller, a boiler-maker, who was sent to examine the boiler after the accident, that the boiler was in a very defective condition. The witness said that he found that one of the tubes had exploded, and that the others were all eaten off at the top and bottom, and that it was of no use to repair the exploded tube, because the boiler needed an entire new set of tubes in order to run as a high-pressure boiler. He also said that the effect of this condition of the tubes was to render the boiler weak and liable to explode upon an overpressure of steam, and that it was unsafe to run it as a high-pressure boiler at all. This testimony was not at all contradicted by any witness. The plaintiff testified that the boiler had been leaking for some time before the accident, though it was not necessarily dangerous on that account, at least he did not know it was dangerous. The plaintiff, and Oberholtzer the engineer, both testified that the plaintiff told the defendant on Saturday before the accident, which occurred on the following Monday, that the boiler leaked, and that the defendant replied, “ he knew it was leaking, but he could not fix it now.” The defendant admitted, on cross-examination, that he knew the boiler leaked, that he often made the fire himself, and noticed that it was dripping. He said: “ It would drip when we started the fire and go away after the pressure of steam would come on.” He also said he bought the boiler as a second-hand boiler, that he had used it about a year and six months at the time of the accident, and that he never examined it, nor had it examined by an inspector.

It was therefore well established that the boiler was defective, that the defendant knew it was defective for some time before the accident, and that his attention was specially called to the defect only two days before the accident, when he was giving directions to Oberholtzer and the plaintiff to have steam up early on Monday morning following. - The men also testified that he declined to fix it then, saying he had no time. According to the testimony of the plaintiff it had been leaking for seven or eight months, and another witness, George Henry, said it was leaking towards the last when he was working for the defendant, and that he had left the defendant’s employment six or seven months before the accident. It seems that, notwithstanding this long-continued leakage, the boiler had not exploded during that time, and the plaintiff said he- did not know it was dangerous on that account.

Under this state of the testimony it cannot be said, either that the defendant was ignorant of the defective condition of the boiler, or that the plaintiff was derelict, in not informing his employer of its condition. The defendant, knowing what was the matter, neglected to have the boiler repaired, or even examined, and certainly it was the duty of the court to submit to the jury the question whether the defendant, as master, was guilty of negligence in not providing suitable tools and implements, such as a reasonably prudent man should provide, for those in his employment.

The charge of the learned court below was most clear, comprehensive and in exact accordance with the perfectly established rules of law applicable in such cases. It was entirely impartial, and gave the defendant every chance, to which he was entitled, for a verdict. So unexceptionable was it in this respect, that not a single assignment of error is made to it, the only assignments being to answers to points. As to these we cannot possibly find any error in them.

It was strictly correct to say, in answer to the defendant’s sixth point, that it was for the jury to determine whether the plaintiff was in the line of his duty when the accident occurred. There was abundant evidence to show that he was in the habit of making the fires at an early hour in the morning before the engineer arrived, and when the defendant requested that fire should be made early on the morning of the accident, the plaintiff was present, as well as Oberholtzer, and might well infer that he was intended as the person, or one of the persons, who was to perform this duty. It would be straining the testimony out of its natural import and meaning, to say that the plaintiff, as a matter of law, was out of the line of his duty when he made the fire and got up the steam, and added a few shovels of coal to the fire just before the accident. He was in the frequent habit of doing these things, and often it happened that there was no one else to do them.

As to the answer to the defendant’s tenth point, it would have been clear error to affirm it. It required a binding instruction to the jury that there was no evidence sufficient to submit to the jury from which they could find negligence on the part of the defendant. We have already seen that there was abundant evidence of this very character, not the least of which was the defendant’s own admissions.

It is equally clear that it would have been grave error to take the whole case from the jury as was requested in the defendant’s eleventh point.

The question whether the explosion was due to an excessive pressure of steam, or to the defective condition of the boiler, was, eminently, a pure question of fact, which necessarily had to be decided by the jury, and there was ample testimony to justify the verdict on that aspect of the case. The allegation that the accident was due solely to an excessive pressure of steam was not supported by the evidence, if the boiler was in good condition. The boiler-maker, Keller, testified that if the boiler was new it would be safe to run it át a hundred pounds pressure. The plaintiff could not know the condition of the tubes, and was not chargeable with negligence for not knowing it. But it was the clear duty of the defendant, warned as he was by the leaking of the tubes, and the notice given him by the plaintiff, to have the boiler properly examined, and the defective tubes removed or repaired. This he did not do, and the very least the court could do was to submit to the jury the question of his culpability in this respect. The authorities upon these subjects are so numerous and familiar that a reference to them is unnecessary.

Judgment affirmed.