
    William M. Hoes, Public Administrator of the County of New York, as Administrator, etc., of Owen Hagen, Deceased, Respondent, v. Ocean Steamship Company of Savannah, Appellant, Impleaded with Morgan Iron Works.
    
      Inspection of machinery by a steamship company — it cannot be delegated—evidence of freedom from, contributory negligence.
    
    It is the duty of a steamship company, after receiving one of its vessels from the hands of another company which has made extensive repairs to the machinery of such vessel, to inspect such machinery and see that it is in proper order before an attempt is made to use it. The steamship company cannot, by delegating this duty of inspection to the engineers, of the ship, escape liability for injuries sustained by an oiler in its employ, in consequence of the blowing out of the bonnet and stem of a valve which had been removed during the repairs and apparently had not been securely replaced.
    Evidence that the oiler, at the time of the accident, was engaged in the ordinary performance of his duty, and that he was seen a moment before the accident to stretch up his hand towards the throttle valve, which it was necessary for him to do in order- to turn the steam into the cylinder to which the valve was attached, is sufficient to justify the jury in determining that he had been guilty of no act which in any way tended or contributed to the happening of the accident.
    Ingraham, J., dissented.
    Appeal by the defendant, the Ocean Steamship Company of Savannah, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 26th day of June, 1900, upon the verdict of a jury for $3,000, as amended nunc pro tuno by an order entered in said clerk’s office on the 27th day of July, 1900, and also from an order entered in said clerk’s office on the loth day of June, 1900, denying the said defendant’s motion for a new trial made upon the minutes.
    
      Herbert Barry, for the appellant.
    
      Franklin Pierce, for the respondent.
   Van Brunt, P. J.:

This action was brought by the public administrator in behalf of the next of kin of Owen Hagen who, on September 14,1898, while in the employ of the Ocean Steamship Company, as an oiler in the engine room of the steamer Git/y 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 eleven and twelve 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 stepped 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 screws 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 Hagan 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 open drain cocks would reduce the pressure. Mr. Cox testified that, in starting up the pump, the first thing is to open the drains and let all the water escape out of the cylinders; then the exhaust is to be opened, and the next thing to be done is to open the steam valve — the throttle; this should be opened very easily, by degrees — just cracked ” a little to let a little steam in.

There was other testimony that the oiler, in connection with the starting of the pump, was to take a- hand lamp and oil can and inspect and oil things thoroughly before there was anything done whatever. There ■ was also testimony that before the accident the rushing sound of blowing out hot water and steam from the drain cocks was not heard, and that it was the oiler’s duty to examine the condition of the pumps and see that they were all right before he ■started them. One of the witnesses testifies“ He must look them over; * * * if lie finds anything loose, he tightens it up ; ” and it was his duty to be familiar with all the working of the pump. The evidence further shows that the oiler is not merely a man who goes around and puts oil on parts of the machinery, but that the oilers are working their way up to the position of engineers.

The evidence further conclusively shows that the oiler should do nothing to these cushion valves; that they ought to be let alone, and that oilers, when they first come on board, are told not to touch these valves. The engineer of the company that manufactured the pump testified that the proper way was to adjust the cushion valve when the pump is set up, and then not have people tamper with it.

There is evidence that this cushion valve had been removed by the employees of the Morgan Iron Works when they were repairing the circulating pump. It was claimed upon the part of the appellant that the officers of the ship knew nothing of the taking out or removal of any of these cushion valves ; but it appeared that the first engineer had been told by the employees of the Morgan Iron Works that they thought it would be necessary to take the cushion valves out; .and he also testified that he had a further talk with the workmen, and they said that there would be no occasion to disturb the valves. The person with whom he had the conversation was the foreman in charge of the machinists. There was evidence that these cushion valves were taken out and that they were seen lying on top of the pump. There is no evidence whatever that there was any inspection made of this pump by the engineers of the steamer after the repairs were made and prior to the happening of the accident.

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-employee.

The principle is familiar that an employer is bound to use reasonable diligence in the furnishing of suitable instruments with which his employees 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 teaiv ing the threads of both the valve and the seat. As has been ■observed, there was no evidence whatever upon an examination of this valve that the threads were injured at all. If it was merely put into the seat loosely without any of the threads being caught, it would have come out before there was such a pressure of steam -as evidently had accumulated prior to the time when Hagen was scalded. It is claimed upon the part of the appellant that it was Hagen’s duty to examine this pump and see that it was in order; but the evidence in respect to these cushion valves is that Hagen ■had no duty in regard to them; that he was not authorized to meddle with them or touch them in any way. Therefore, if they were out of order, it was no negligence upon his part not to examine them to see that they were in order, as he had a right to assume that they were in fit condition at the time he went to the pump for the purpose of turning on the steam. It was the duty of the employer under the circumstances, after this machinery had been in the hands of the machinists for the purpose of making the extensive repairs which seem to have been made upon this ship on this occasion, to see that the machinery was in proper order before it was attempted to be used. And it is no answer to this proposition to say that that was the duty cast upon the engineers of the ship, who were the co-employees of the deceased; because it was a master’s duty to see that the machinery was in proper order for use before it was attempted to be used, and if this duty of inspection was delegated to anybody else, it was still the inspection of the principal, and if ■neglected in its performance, it was as much in fault as though the master had been guilty of the neglect. It was entirely different from the ordinary routine of work to be done by the engineers in the running of the machinery. It was a fulfillment of the duty required of the owner to see that the instruments with which his ■employees were to work were in proper condition for use.

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 was 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 toward 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 appellant 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 codes 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 questions were properly submitted to the jury, and that the judgment and order appealed from should be affirmed, with costs.

O’Brien, McLaughlin and Hatch, JJ., concurred; Ingraham,. <L, dissented.

Ingraham, J. (dissenting):

I do not concur in the affirmance of this judgment. The jury were instructed that they could find the appellant guilty of riegligence if, in the exercise of reasonable care in the discharge of its. duty, the appellant should have discovered either the omission of. this valve, or the imperfect manner of its return. The appellant 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, then the Ocean Steamship Company is not liable.” This request was refused in that form, and the appellant excepted.. The liability of the appellant 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 repair the defect. The appellant was a corporation, and necessarily had to delegate this duty of inspection to its agents, and I think that, if the agents, whose duty it was to inspect, failed in that duty, no one of such agents upon whom such duty devolved could recover, as the negligence was that of a co-servant for which the appellant was not liable. It seems to me that the distinction must be' drawn between those servants of the appellant, 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, he could not have recovered. And so, if any servant of the appellant, standing in the same relation to the master as to the particular duty which it was alleged was neglected, was 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 thatno 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 to remove those cushion valves, but had subsequently informed him 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 appellant or any of its officers had any knowledge that these valves were removed. An employee of the appellant, not connected with this department, testified that four or five days, prior to the accident he saw the valves removed from their position and placed upon the top of the pump ; that subsequently and on the same day he found the valves replaced, and, upon testing them, found them secure. This was the only evidence to justify a finding-that the valves had been removed, although, from the condition of the valves after the accident, it was apparent that they had been taken out of the pump. There was, however, nothing to call the attention of the appellant to the fact that these valves had been removed or that any inspection of the pump was necessary. The testimony is uncontradicted that the plaintiff’s intestate held the position of what was in effect an assistant to the engineer, and I think that he was a co-servant with the engineer in the discharge oí this duty of managing and inspecting this machinery. In the first place, to make it the duty of the appellant, to inspect this pump, there must have been some notice to the appellant or its agents that for some reason it had become out of order, or needed repair. Before negligence could be predicated upon a failure to: inspect, it certainly must appear that for some reason a prudent person would consider an inspection necessary. There was no evidence here to justify the slightest suspicion of the agents of the appellant that this pump was out of order, or that' inspection was necessary. The plaintiff’s intestate was entirely familiar with the operation of this pump and his duty in relation thereto. He had been engaged in operating this machinery for several years, and if it was negligence to start, this pump without testing these valves, he, being in charge of the pump, with knowledge of its construction and method of working, was as guilty of negligence in not making the proper test as was the engineer or his assistants who were on duty in charge of other parts of the machinery.

This conclusion, I think, is in accordance with the rule laid down in Crispin v. Babbitt (81 N. Y. 516). Judge Bapallo there says : “ The liability of the master does not depend upon the grade or rank of the employe whose negligence causes the injury. . A superintendent of a factory, although having 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 appellant was a corporation and had to appoint agents to perform this duty. It appointed a chief engineer, assistant engineers and other employees 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 employees were co-servants, and that the chief engineer, or any other engineer, was, as said by Judge Bapallo in Crispin v. Babbitt (supra),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 appellant was not responsible.

There was also a request to charge which was refused, to which I think the appellant was entitled. The only evidence that the accident caused the death of the intestate was the testimony of Dr. Cur-tin, who was a house surgeon at St. Vincent’s Hospital where the plaintiif’s intestate was carried after the accident. He testified that the plaintiff’s intestate was brought there on September fourteenth, and that his condition continued to improve until the third of October, when he suddenly died. The witness stated that in his opinion the cause of his death was intestinal perforation, the result of burns. "This witness had been in practice about eighteen months at the time of the accident. Upon his cross-examination he testified that the burns were not of a serious character, being, known as either of the first, second or third degree; that none of the burns ■extended below the true skin; that his fever lasted about a week, ■and after that he commenced to take solid food; that during tile second week the wounds gradually improved ; that all of the burns of the first and second degrees healed up and disappeared; that the only wounds then unhealed were upon his thigh; that he' was allowed to be dressed and to sit up in bed and was progressing favorably, when, on the third of October, his death came very suddenly, lie raised up in bed and then dropped back, collapsed and died in ten" minutes; that these were the first symptoms indicating that his ■condition was any more serious than it had appeared at any other time; that he never saw a case of intestinal perforation resulting from a burn, and that this was merely a matter of opinion. The appellant called a witness who, it was admitted by plaintiff’s counsel, qualified in every respect as an expert. He testified that in his opinion the plaintiff’s intestate did not die from the burn; that in ■cases where death comes from a perforation it is preceded by severe pain for forty-eight hours, and that the witness knew of no case ■where the patient had not lived at least twenty-one hours after the ■occurrence with intense pain ; that the symptoms in such a case are those of peritonitis at the beginning, constant pain and rise in temperature, a very rapid pulse and all attendants of such a condition; that in no recorded case have the symptoms been less than twenty-•one hours before death ; that “ if the first symptom was the collapse attendant on an effort to rise, and not preceded by fever, and death, resulted in ten minutes, that would exclude a perforation of the= duodenum; that is, that the death was caused by it.” Counsel for the appellant asked the court to charge that “ the jury are not. bound to believe the testimony of the plaintiff’s medical witness as-to his opinion that Hagen’s death was due to accident.” That the-court refused to charge and the appellant excepted. The court had charged the jury that the plaintiff, could not recover unless they believed that Hagen’s death resulted from the injury sustained by him on September 14, 1898. But, considering the character of the testimony and the rather remarkable evidence of this expert called by the plaintiff, I think the appellant was entitled to have the jury instructed that they were not bound to believe this opinion of the ■plaintiff’s expert and that a refusal to charge the request was error..

For these reasons I think the judgment should be reversed.

Judgment and order affirmed, with costs.  