67 N.Y.S. 782 | N.Y. App. Div. | 1900
Lead Opinion
This action was brought by the public administrator in behalf of the next of kin of Owen Hagen, who on September 13, 1898, while in the employ of the Ocean Steamship Company as an oiler in the engine room of the steamer City of Augusta, then lying at pier 34, North river, was so severely scalded by the escape of steam that he thereafter, on October 3, 1898, died. The accident, it was claimed, was caused by the negligence of the defendants, and occurred between 11 and 12 o’clock at.night, just before the steamer sailed from her dock. For two or three weeks prior thereto the steamer had been undergoing repairs, which were made by the Morgan Iron Works. On the night in question the plaintiff’s intestate was at his post, on the lower grating of the engine room, and stooped over, in performance of his duties, to the feed pump, which was used to pump water from the condenser back into the boiler, and turned on the throttle valve to let steam into this feed pump. Part of the fittings of this pump are two cushion valves; their purpose being to permit a cushion of steam to be formed in the steam cylinder, so that the piston will not strike against the head of the cylinder with too much force. When Hagen turned on the steam one of these valves came out, and by the steam escaping through the opening he was scalded. It is claimed by the defendants that he was scalded by hot water as well as steam, but there is no evidence that there was any hot water. At the time of the accident, another oiler, William Cox, was near the foot of the ladder; and Henry M. Wilson, an assistant engineer, was standing on the middle grating, just above, and he immediately turned off all the steam. Edward M. Stanford, another assistant engineer, was also on the middle grating, and went down the ladder, and found upon the floor, beside the feed pump, the rod and wheel, together with the bonnet of the cushion valve. The bonnet is the part of the valve which screw's into a seat or casting, and through which the stem of the valve works. None of the threads of the bonnet or of the seat were broken or torn, and the valve and bonnet were replaced upon the cylinder and screwed up, and thereafter used. There is no evidence that they had been imperfect in any way. The house surgeon of the hospital to which Hagen was taken testified that the cause of his death was intestinal perforation, the effect of burns and scalds, which he described as covering a considerable area. He referred to the injuries as due to steam, but no mention was made by him or any other witness of hot water as causing the injuries in question. It was testified that steam condenses to hot water in the cylinder, and that drain cocks are provided in the bottom of the cylinder for letting such water out, and that when the pumps are first started there is considerable hot water from condensation of steam. It was further testified: That the pumps were generally full of water, which runs out through the drain cocks, and should be so allowed to run out. That the blowing out of hot water and steam makes a noise something like when a locomotive is started up,—the noise of escaping steam, a sort of rushing sound. There is no danger attendant on starting the pump in that way, with the steam gradually admitted; and with the drain cocks open, if anything should seem to be wrong,
The question which is presented upon this appeal is as to whether any such duty of inspection, under the circumstances, rested upon the .engineers of the steamship, and whether, if such duty was not performed, it was not the negligence of a co-employé. The principle is familiar that an employer is bound to use reasonable diligence in the furnishing of suitable instruments with which his employés shall work, and also to use reasonable diligence in furnishing them with a safe place in which to work. The exact cause of the happening of the accident in question is not apparent. If the bonnet of the valve had been screwed on as it should have been, it could not have been blown out without tearing the threads of both the valve and
It is further claimed that there is no proof that Hagen was free from contributory negligence in causing the happening of this accident. It is true, his mouth is sealed in death. But the evidence discloses that he wás in the ordinary performance of his duty at the time of the happening of this accident, which he had no reason whatever to anticipate. He was seen to be stretching his hand up towards the throttle valve but a moment before the happening of the accident, which it was necessary for him to do in order to turn on the steam; and then in a moment thereafter this rushing sound of steam was heard, caused by the fact that the bonnet and stem of the cushion valve had blown out from the seat. From these facts the jury had a right to determine that the deceased had been guilty of no act which in any way tended or contributed to the happening of the accident, and that the defendant was guilty of negligence in not having made an inspection of this machinery after it had been in the hands of the machinists, in order to assure itself that it was in proper order for use. There was considerable said in regard to the drain cocks being open, but if this cushion valve had been in position and properly secured, even if the drain cocks were shut, the cushion valve would not have blown out as it did.
Upon the whole case, therefore, we are of the opinion that the
O’BRIEN, McLAUGHLIN, and HATCH, JJ., concur.
Dissenting Opinion
I do not concur in the affirmance of this judgment. The jury were instructed that they could find the defendant guilty of negligence if, in the exercise of reasonable care in the discharge of its duty, the defendant should have discovered either the omission of this valve, or, after its return, the imperfect manner of its return. The defendant then requested the court to charge that:
“The duty of inspecting this pump was one that devolved upon Hagen, or upon a co-servant of Hagen; and, if the accident happened by reason of the neglect of such co-servant, the Ocean Steamship Company is not liable.”
This request was refused in that form, and the defendant excepted. The liability of the defendant was thus expressly confined to its negligence in the discharge of this duty of inspecting this pump prior to its use by the plaintiff’s intestate, or in failing to report the defect. The defendant was a corporation, and necessarily had to delegate this duty of inspection to servants appointed by it; and I think that if the servants appointed, whose duty it was to inspect, failed in that duty, no one of such servants upon whom such duty devolved could recover, as the negligence was that of a co-servant, for which the defendant was not liable. It seems to me that the distinction must be drawn between those servants of the defendant, regardless of their character or standing, who were charged with the duty of inspection, and those upon whom no such duty devolved. It was said that the duty devolved primarily upon the first assistant engineer, and, certainly, if that engineer had neglected that duty, and he had been injured in consequence of such negligence,1 he could not have recovered. And so, if any servant of the defendant standing in the same relation to the master as to the particular duty which it was alleged was neglected, were negligent in the performance of that duty, then such negligence would be that of a co-servant, for which the master would not be responsible. In this case the evidence is uncontradicted that this particular pump had not been repaired with the other machinery, that it was in perfect repair at the time those other repairs were commenced, and that no necessity existed for removing these cushion valves. The assistant engineer, who was called by the plaintiff, testified that the foreman of the Morgan Iron Works had informed him at one time that it would be necessary t'o remove these cushion valves, but had subsequently informed Mm that it would not be necessary, and that they would not be touched; and this evidence was not contradicted. The foreman of the Morgan Iron Works testified that he had said to the assistant engineer that the valves would not be removed, and that, as a matter of fact, they were not removed. There is no evidence that the defendant or any of its officers had any knowledge that these valves were removed. An employé of the defendant, not connected with this department, testified that four or five days prior to the accident he saw
“The liability of the master does not depend upon the grade or rank of theemployé whose negligence causes the injury. A superintendent of a factory, although having the power to employ men or represent the master in other respects, is, in the management of the machinery, a fellow servant of the other operatives.”
In the application of this rule, it seems to me that any negligence-that could be predicated upon a failure to inspect was either the negligence of the plaintiff’s intestate or his fellow servant. Whose duty was it to inspect this machinery? The defendant was a corporation, and had to appoint agents to perform this duty. It appointed a chief engineer, assistant engineers, and othei employes,, designated as “oilers,” but whose real duty was to act as assistants-to the engineers. In the management and control of the engines, it seems to me that all of these employés were co-servants, and that the chief engineer, or any other engineer, was, as said by JudgeEtapallo in Crispin v. Babbitt, “in the management of the machinery, a fellow servant of the other operatives.” I think, therefore, upon this evidence, the negligence, if any, was that of either the plaintiff’s, intestate or his fellow servant, for which the defendant was not responsible.
For these reasons, I think the judgment should be reversed.