Johnson v. Boston & Montana Consolidated Copper & Silver Mining Co.

| Mont. | May 13, 1895

Hunt, J.

-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 defect or unsafe’ condition ? (3) Did defendant use that degree of care required in furnishing and using the boiler for its concentrating works, or was defendant guilty of such negligence in these matters as to render it liable in this action for the death of one of its employes, plaintiff’s intestate?

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 specifically deny that he made such a statement, or that such was the contemplated plan of his company. It is important, too, in adding weight to the whole testimony of Sloan, who says that the boiler was repaired, with the end in view of its use for pumping purposes, independently of any connection with other boilers of greater size, greater strength, and much more recent construction. Heimbach knew of the several patches which Sloan was putting upon the boiler to fit it for temporary service. He knew, as a mechanic and engineer of experience, that an old repaired boiler, once removed from mining works, and for a long time exposed to the impairing causes of scale and crystalization, was weakened generally, and that the iron was less capable to resist pressure than it would have been had it not been covered with a scale of one-sixteenth to three-sixteenths of an inch. He knew the boiler was single riveted, and that the holes made in the iron where the patches were put on were punched and not riveted. He knew, also, that the boiler was not fit to carry more steam than 70 pounds, as a maximum pressure. Yet, with all this knowledge, which was the knowledge of the company in this suit, long after the six months use for pumping purposes had expired, and after additional age and wear and tear had wrought their deleterious effects upon the boiler, the defendant determined to use the boiler in the works, where Heimbach admits it had to be necessarily connected with the same steam pipe that the adjacent and larger and stronger boilers are connected with. It is true that a test of the boiler was made before it was fired. But this test was evidently made, primarily, to see if the boiler leaked. It was made, too, with only one gauge, whereas, it appears, two are more certain, and are commonly used to insure that high degree of accuracy which should govern all boiler tests (particularly old and weakened boilers), but which can only be had where even the possible imperfection of a single steam gauge is guarded against.

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 for use in its works where its employes were exposed. The defects were numerous, and not latent. The case is accordingly quite free from the difficulties often attending the imputation of a lack of that ordinary vigilance and care which ought, in reasonable prudence, to be exercised where dangerous machinery is used. The boiler was altogether so old and defective and weak that it • could not perform the service required, and, by reason of the many defects hereinbefore recited, ordinary prudence should have deterred the defendant’s servant, Heimbach, from using it at all in the works, or from placing it where a connection with other and larger boilers was to be made.

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 knows that his boilers are defective, or if, under all circumstances, as a reasonable man, he should have discovered, though he did not, their defective condition, or if he negligently remained ignorant of their defective condition, if the defective condition thereof was the direct and proximate cause of an explosion which injured the servants, who are blameless, and who did not contribute towards the production of the accident by their own fault or neglect, then the law is that the employer is liable to such servants in a civil action for damages thus occasioned. ” The learned judge says the duties are “to use ordinary care and prudence to have and to keep the boilers and machinery in a safe and sound condition. ’5

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 responsibilities of the owners and of the men employed are great; hence ordinary care in furnishing suitable boilers for such works would be a much higher degree of care than, for instance, would be ordinary care in furnishing a wagon wherewith to haul the concentrates from the works to a railroad depot or elsewhere.

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 upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion from them that the question of negligence is ever considered as one of law for the court. ’ ’ (Railway Co. v. Ives, 144 U. S. 417, 12 Sup. Ct. 679.)

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 by Justice Lamar for the supreme court of the United States: “Neither individuals or corporations are bound, as employers, to insure the absolute safety of the machinery or mechanical appliances which they provide for the use of their employes. Nor are they bound to supply the best and safest or newest of those appliances, for the purpose of securing the safety of those who are thus employed. They are, however, bound to use all reasonable care and prudence for the safety of those in their service, by providing them with machinery reasonably safe and suitable for the use of the latter. If the employer or master fails in this duty of precaution and care, he is responsible for any injury which may happen through a defect of machinery which was, or ought to have been, known to him, and was unknown to the employe or servant.” (Railway Co. v. McDade, 135 U. S. 570, 10 Sup. Ct. 1044; Bailey, Mast. Liab. p. 14; Wood, Mast. & Serv. § 329; Shear & R. Neg. § 92; Thomp. Neg. p. 982, § 11, par. 7; Coal Co. v. Hayes, 128 Pa. St. 294, 18 A. 387" court="None" date_filed="1889-10-07" href="https://app.midpage.ai/document/lehigh-coal-co-v-hayes-6353722?utm_source=webapp" opinion_id="6353722">18 Atl. 387; Carlson v. Bridge Co., 132 N.Y. 273" court="NY" date_filed="1892-03-25" href="https://app.midpage.ai/document/carlson-v-phoenix-bridge-co-3625644?utm_source=webapp" opinion_id="3625644">132 N. Y. 273, 30 N. E. 750; Wilson v. Linen Co., 50 Conn. 433" court="Conn." date_filed="1883-01-15" href="https://app.midpage.ai/document/wilson-v-willimantic-linen-co-6581487?utm_source=webapp" opinion_id="6581487">50 Conn. 433.) In Diamond v. Northern Pacific R. R. Co., 6 Mont. 580" court="Mont." date_filed="1887-01-15" href="https://app.midpage.ai/document/diamond-v-northern-pac-r-co-6637725?utm_source=webapp" opinion_id="6637725">6 Mont. 580, the court discuss the principle as applicable to common carriers.

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 procuring for its operations sound machinery, and, if you find that the defendant did use reasonable care in furnishing said boiler for the use of its servants, then you should find for the defendant.” The court further charged: “In providing machinery, appliances, or tools for the use of his servants, the master does not warrant the safety of such machinery or tools; he is not an insurer of the fitness of such machinery, and he is not required to see that such machinery or tools are absolutely safe. Nor is he bound to exercise the highest skill, nor to use extraordinary care. ” “In providing such tools and machinery, he is bound to use only ordinary prudence and care, that the careful and ordinarily prudent man would use under the circumstances. Nor is the master bound to furnish the safest tools and machinery, and in this case, if defendant furnished such a boiler as a reasonably prudent man would furnish, the plaintiff cannot recover, and your verdict should be for the defendant. ’ ’

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 and place where it was used. Whether' connections with the other boilers were or were not made is hard to tell, and, as we look at the testimony, is not of vital importance. It is probable, however, that, directly after the engineer said they were about to connect the boilers, they did so, and the great amount of steam in the larger boilers rushed into the old one, and that it at once exploded by incapability of withstanding the pressure. The element of contributory negligence needs no consideration, for neither the pleadings nor the testimony raise that issue in the case. Nor does the alleged negligence of the engineer as a fellow servant require any discussion, for the defendant offered no testimony to support this plea.

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.

De Witt, J., concurs. The Chiee Justice, deeming himself disqualified, did not participate in the hearing or decision of this case.