November Term, 1901.
Wilbur F. Osborn, for the appellant.
George D. Reed, for the respondent.
The judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide event.
The action was brought to recover damages for injuries to the plaintiff, alleged to have been caused by the negligence of the defendant. The plaintiff was a fireman upon one of the defendant's steamboats, and was injured by the explosion of the water glass or gauge attached to the boiler of the boat. The glass or gauge cracked. The engineer discovered the crack and that the steam was escaping therefrom, and thereupon directed the plaintiff to turn the valves and shut off the water. The plaintiff followed the engineer's directions, and while he was turning the lower valve the glass or gauge exploded, some particles of glass flew in plaintiff's eye, and caused the injuries complained of.
The engine, boiler and water glass or gauge were not shown to have been defective in any way prior to the immediate time of the occurrence of the accident.
The defect in the glass or gauge, if any, was not apparent until it cracked, just before the explosion. The negligence of the defendant, which was made the basis of the recovery in the case, was the direction given by the engineer to the plaintiff to turn the valves and shut the water off from the glass or gauge, and the failure to inform him of the danger in following such directions.
The jury were instructed that the engineer stood in the place of the defendant, and that his negligence was the negligence of the defendant. An examination of the body of the charge, and of the remarks of the court, in response to requests to charge and the exceptions to the charge as made, clearly indicates that the theory upon which the case was submitted to the jury, and the controlling consideration, was that the engineer represented the defendant, and that his negligence was the negligence of the defendant.
The court was in error in taking this view of the case, and in submitting it to the jury upon this theory.
The steamboat was not in charge of the engineer, but of the plaintiff's father, as master. The engineer and plaintiff, as fireman, were under the general direction of the master. The engineer had sole charge of the engine, boiler and motive power, with the duty of making any necessary repairs thereon. The plaintiff, as fireman, was under the immediate direction of the engineer, who had power to discharge him for disobedience of orders. There was no reason for saying that, in any general sense, the engineer stood in the place of and represented the defendant in the control of the steamboat. He was a co-employee, merely, with the plaintiff.
The court seems to have confounded this case with the cases where the duty to repair machinery is imposed upon the master, and in which it is held that this duty cannot be delegated to a servant so as to relieve the master from liability. The neglect of the servant would be the negligence of the master. This is the general rule, but it does not apply to such defects in machinery as may arise in the daily use thereof, and which are not of a permanent character and which do not require the help of skilled machinists to repair, but may be and are usually remedied by the workmen, the materials being supplied by the master. ( Cregan v. Marston, 126 N.Y. 568, and cases therein cited.)
This case and the cases cited illustrate the exceptions to the general rule above referred to, and show the case we are considering falls within these exceptions.
The glass or gauge was readily removed when it became defective and a new one put in its place by turning the valves at either end, thus shutting off the water, and then taking out the defective glass and putting in a new one, a supply of which is kept on hand. Any ordinary laborer could do this. A skilled mechanic was not needed. The glasses were liable to crack and break at any time. It was clearly the duty of the engineer to make the change here, in his capacity as a servant, and in doing it he was not representing the defendant, but was acting as a co-servant of plaintiff. Even if, upon notice to the defendant, the duty to repair might be imposed upon it, and a failure to perform this duty within a reasonable time would be negligence, still no such notice or reasonable time were present here. The explosion occurred almost immediately after the defect in the glass appeared. The negligence here, if any, of the engineer was the negligence of a co-employee of the plaintiff, and for such negligence no recovery could be had.
For the error hereinbefore pointed out, the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide event.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event.