
    Alice P. Ware, as Administratrix, etc., of Tilden Hendricks Ware, Deceased, Respondent, v. Ithaca Street Railway Company, Appellant.
    Third Department,
    March 11, 1908.
    Master and servant — negligence — boiler explosion — failure to inspect , — erroneous charge — assumption of obvious risks.
    Where the evidence shows that the boiler which exploded and killed the plaintiff’s intestate could only have been tested by hydraulic test and that a hammer test was impossible owing to its construction, it is reversible error to refuse to charge that the plaintiff could not recover on account of any failure of the defendant to apply the hammer test, for the jury may have based its verdict on the latter ground.
    An assistant engineer and fireman employed in a power station by voluntarily continuing his employment assumes the risks resulting from the peculiar construction of the building and cramped position of the boiler, for such dangers are obvious and apparent, and in a common-law action for negligence it is error to refuse so to charge.
    Appeal by the defendant, the Ithaca Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins on the 23d day of April, 1907, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 22d day of April, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      Myron N. Tompkins, for the appellant.
    
      David M. Dean and P. F. McAllister, for the respondent.
   Sewell, J. :

This action was brought to recover damages for the death of Tilden H. Ware, plaintiff’s intestate, who was killed by an explosion of a boiler in the defendant’s power house located in Fall Creek Gorge in the city of Ithaca. The boiler was a water tube boiler, consisting of eight horizontal rows of tubes with twelve tubes in a row. Each tube was sixteen feet long and four inches in diameter.

On the 22d day of January, 1902, while the decedent and one John Considine were in the employ of the defendant, decedent as assistant engineer and fireman and Considine as helper, one of the inner tubes burst, which allowed the water and steam to escape into the fire box and blow out through the door thereof, inflicting injuries upon Ware from which he shortly died. An examination of the tube, after the accident, disclosed- the fact that there was an imperfect Avoid at the point of rupture. The evidence tended to show that the explosion was caused by this defect which rendered, the tube incapable of sustaining the pressure put upon it, and that the defect would have been discovered by the defendant if there had been a' proper inspection of the boiler.

The plaintiff claimed and gave evidence to the effect that the defect would have been disclosed by the hydraulic test, which consists in applying Avater pressure until the pressure in the boiler is in excess of the normal steam pressure, and that this test Avas the customary test to ascertain the strength of a boiler. Evidence was also given tending to show that a hammer test is sometimes made by striking every part of the boiler with a hammer, but it was undisputed that such a test could not have been applied to the boiler in question. It appeared from uncontradicted evidence, introduced by the plaintiff, that a hydraulic or hydrostatic test was the only practical test for a boiler of this type and character.

There was, therefore, no basis in the proof for imputing negligence to the defendant for omitting the hammer test, and we think the court erred in refusing the request of the learned counsel for the defendant to charge “ that the plaintiff cannot recover on account of any failure upon the part of the defendant to apply the hammer test to this boiler.”

As it is impossible to say that the jury did not find that the defendant was liable for not applying this test, it follows that the judgment should be reversed and a new trial ordered.

We also think that the learned trial justice, in desiring not to interfere with the province of the jury, erroneously submitted to them the question whether the plaintiff assumed the obvious and apparent danger incident to the peculiar construction of the building and the situation of the boiler.

It, appeared upon the trial, and the fact was not contradicted, that the decedent commenced work in this building and continued his employment therein for nearly two years with full knowledge of its character and construction as well as the location of the boiler and other machinery. The case, therefore, is brought within the rule often recognized and applied to the effect that a servant upon entering the employment assumes not only all the risks incident to such employment, but all dangers which are obvious and apparent, and if he voluntarily continues in the service, having knowledge or the means of knowing the dangers involved, he is deemed to assume the risk and to waive any claim for damages against the master in case of personal injury. (Hichey v. Taaffe, 105 N. Y. 26; Crown v. Orr, 140 id. 450; Knisley v. Pratt, 148 id. 372.)

We think that it is too plain for argument that the decedent took upon himself all the risks resulting from the peculiar construction of the building and the cramped position of the boiler, and as this is an ordinary common-law action.for negligence the defendant was entitled to have the charge made as requested.

The judgment and order should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  