| Mont. | May 13, 1895
-The
specifications of errors which we will consider, as they relate to the issues before us by the record, are, substantially: (1) Was the boiler which exploded and killed plaintiff’s intestate defective and unsafe for the uses and purposes to which it was put by defendant ? (2) If it was unsafe or defective, was such condition patent or latent, and did defendant know of such defect or unsafety, or ought it, in the exercise of ordinary care and prudence, to have known of such
The first question may be easily answered by referring to the proof that the boiler exploded upon the first day that it was put into service in the works". Accepting as true the statements of the defendant’s witnesses, that the boiler was carrying only 55 pounds of steam less than 10 seconds before the explosion, and was at that time unconnected with the larger boilers upon either side of it, and was simply being ‘! warmed up, ” as it is expressed, it is an almost irresistible inference that the terrific explosion which ensued within 10 seconds thereafter, by which the boiler was torn to pieces, was due to a radically unfit condition of the boiler to either carry the steam pressure which was then marked, or the probable increased pressure which was added by increased heat or connections with other boilers within the ensuing seconds. It naturally follows, therefore, that the boiler was unfit for the uses to which it was put (whether or not such uses were or were not reasonable or unreasonable) when the explosion occurred. We will therefore, in the light of the fact of the explosion, pass to the second and third inquiries concerning the defects in the boiler, and the alleged negligence of the defendant.
The boiler was old and in bad condition before repair. Such doubts did defendant have about 11 months before it exploded, of its capabilities, that it seemed to hesitate to make use of it at all, until, in the opinion of Sloan, it could be made to answer for temporary purposes in pumping water, where about 60 pounds pressure would suffice. And it was upon the theory that it was only to be so used, and for about six months that Heimbach, for defendant, directed the repairs to be made. W e must attach stress to the brief period of time for which it was said use was to be made of the boiler, because Mr. Couch, the general superintendent, who advised Sloan that a new boiler would be procured in six months or a year, does not specifi
So that, notwithstanding the test, we are constrained to conclude, from all the evidence, that the boiler was not such a reasonably safe appliance as defendant ought to have furnished
Now, when we test the conduct of defendant by the standard of duty imposed by law upon all employers towards employes, where steam boilers are used, in respect tó the safe condition of such boilers, we are of the opinion that the defendant was negligent.
Jones v. Yeager, 2 Dill. 64" court="None" date_filed="1872-10-03" href="https://app.midpage.ai/document/jones-v-yeager-8633169?utm_source=webapp" opinion_id="8633169">2 Dill. 64, Fed. Cas. No. 7,510, was a case of negligence in a boiler explosion where there was some evidence that the boilers were old in their iron, in some places less than the ordinary thickness, and brittle, and the contention was that the explosion was caused by such defect. The defense, among other matters, was that the boilers had been regularly inspected, according to ordinance, and had been overhauled and put in repair but a few months preceding the explosion. Judge Dillon answers the question of the duty of employers towards employes in such cases in the following language: “This is an important question, and must be carefully answered. The employer does not, impliedly, engage to insure his servants that there shall be no accidents resulting from the use of such machinery. Steam, which is a necessary, is at the same time a dangerous, power, and the danger which attends the use of it imposes upon the owner of machinery propelled by it certain duties and obligations, and these are to use ordinary care and prudence (the degree of this must be proportioned to the danger) to have and to- keep the boilers and machinery in' a safe and sound condition. If the employer
The courts have very frequently, within the last few years, been called upon to define the meaning of ‘ ‘ordinary care and prudence. ’ ’ New inventions in steam and electrical machinery have resulted in new occupations for men, and new mechanical appliances whereby their labor is employed. Thus are unforseen and nice questions of the law of negligence constantly arising as these new relations of employes and employers are discussed and considered by the courts. Familiar underlying principles, evolved from generations of experience and thought, are to be applied to the peculiar phases presented by the facts and circumstances of the particular case under investigation. And so we find the opinions, in discussing the definition of ‘ ‘ordinary care, ’ ’ recognize that no fixed arbitrary rule can be laid down, but that the degree of care and vigilance required varies according to the exigencies which require attention and vigilance, conforming in amount and degree to the particular circumstances under which they are to be exercised. The care and attention necessary on an employer’s part in furnishing a steam boiler is relative to the work to be done by the boiler, and the capacity of such an instrument for harm as well as good.
In a concentrating works, where three large boilers are needed, aggregating about 200 horse power, it requires no technical knowledge to say that many men are necessarily employed about such machinery, and that the dangers and
The circuit court of the United States for the eastern district of Michigan charged a jury in relation to negligence and ordinary care as follows : “You fix the standard for reasonable, prudent and cautious men under the circumstances of the case as you find them, according to your judgment and experience of what that class of men do under these circumstances, and then test the conduct involved, and try it by that standard ; and neither the judge who tries the case, nor any other person, can supply you with the criterion of judgment by any opinion he may have on that subject.” (Railway Co. v. Ives, 144 U.S. 408" court="SCOTUS" date_filed="1892-04-04" href="https://app.midpage.ai/document/grand-trunk-railway-co-v-ives-93328?utm_source=webapp" opinion_id="93328">144 U. S. 408, 12 Sup. Ct. 679.) The supreme court of the United States review the instructions in the following approved language : ‘ ‘But it seems to us that the instruction was correct, as an abstract principle of law, and it was also applicable to the facts brought out at the trial of the case. There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms ‘ordinary care, ’ ‘reasonable prudence, ’ and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case may, under different surroundings and circumstances, be- gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men, under a similar state of affairs. When a given state of facts is such that reasonable men may fairly differ
The appellant argues that the charge of the district court was not based upon the correct doctrine of ordinary care, as it should have been applied to the boiler used, and complains of the following instruction: “A corporation is required to supply i+s employes with safe and suitable machinery, and, through its officers and proper servants, make all reasonable efforts and take proper care to keep such machinery in safe and serviceable condition, and to that end make, through its officers and proper servants, all needed inspections and examinations. In this case, if you find from the evidence that the boiler in question was defective and unsafe, and that the officers of the corporation defendant and its proper servants failed to provide a safe and suitable boiler, or failed to make all necessary inspections and examinations to keep such boiler in safe and suitable condition, or, making such inspection and examination, failed to remedy the defects, then you must find a verdict for the plaintiff.” The objection goes especially to the law as given requiring the corporation to supply its employes with ‘ ‘safe and suitable machinery. ’5 It might be that this statement of the law, without any qualification, would be calculated to mislead a jury into the error of believing that safe machinery jneans absolutely safe or perfect instrumentalities for the performance of work. Such exact perfection is not the test. The employer is in duty bound to see that the machinery is fit and safe for the work, only so far as due and reasonable care and diligence and prudence will go towards having it, and keeping it, safe and fit. He is not a warrantor of the safety of the machinery, and, when he has exercised the degree of care hereinbefore discussed as ordinary or reasonable, his duty is done. (Wharton on Negligence § 211.)
The general principle which must govern is stated as follows
Conceding, therefore, that, as given, the instruction, standing alone, seemed to import a general rule that perfect or absolutely safe machinery was the standard of duty, still we find the qualifications of the rule carefully laid down in other instructions throughout the charge. The jury were told that ‘ ‘ a master is never liable for such defects in machinery as could not be discovered with ordinary care, and if you find that the boiler which exploded and killed the deceased, William O’Connor, was defective, and such explosion was caused by such defect, and that such defect in the said boiler was latent, —that is, if it could not be discovered by ordinary care on the part of. the defendant, — then said defendant is not liable in damages, and your verdict should be for the defendant. ’ ’ And again, that, “ in an action for damages for causing the death of deceased, the burden of proof is on the plaintiff, and he must show that the defendant did not use reasonable care in
When considered as a whole, our opinion is that the law was well and consistently stated, both as to latent and patent defects, and the jury must have had a clear idea of the principles applicable to the issues raised on the trial. To the evidence they applied these rules, and we think their verdict was just. We regard the instructions defining that reasonable care in providing a suitable boiler was the test, as by no means in conflict with the first instruction requiring safe machinery, but as proper limitations put upon the rule stated, and restricting the applicability of the rule within these limitations, which were laid down as qualifications not in conflict with the rule itself. Similar instructions were sustained in Kennon v. Gilmer, 6 Mont. 267.
The doctrine of latent defects, as said before, has but little to do with the case. Our view of the matter is that Heimbach knew, or ought, in the exercise of ordinary prudence and care, to have known, that such an obviously defective boiler was unsafe without connections, and fearfully so with connections with other and larger boilers. It was negligence on defendant’s part to use such a defective boiler at all in the manner
The case is somewhat difficult, on the facts, but our best judgment is that plaintiff is entitled to recover, and that the ruling of the district court must be affirmed.
Affirmed.