
    Ellen J. Ballard, as Executrix of William P. Ballard, Deceased, Resp’t, v. The Hitchcock Manufacturing Co., App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed January 19, 1889.)
    
    1. Master ahb servant—Duty oe master—Liability eor injury to-SERVANT.
    A master is bound to exercise reasonable care and diligence in the selection of and the maintaining of machinery used in the business; the amount of care is measured by the circumstances of each case, dependent upon the kind of machinery used, the risks incident to its use, and the hazard, attendant upon the conduct of the business.
    3. Same—Charge to jury.
    In an action for damages for death caused by the explosion of a boiler, the judge charged that “ if the defects were such as were known or discoverable by examination or by application of known tests, that the defendant was chargeable whether he knew oí the defect or not: ” Held, error; as there-was no evidence as to what known tests it would have been proper to-apply or resort to, and that the same were not applied, and it was not . proper to leave to the jury to determine what tests the defendant was-bound to make to bring itself fully up to a discharge of the obligations it owed the deceased.
    Appeal from a judgment entered upon the verdict of a jury and from an order denying a motion for a new trial on the minutes
    The material facts are stated in the opinion.
    
      Franklin Pierce, for resp’t, Duett & Benedict, for app’lt.
   Kennedy, J

The plaintiff’s testator, William P. Ballard, was killed by the explosion of a steam boiler owned and used by the defendant, on the 30th day of May, 1887.

The defendant was a corporation organized for' manufacturing purposes, and carried on and conducted an extensive business at Cortland, N. Y., and had for some years prior to the accident. Deceased was in its employ, and had been for a considerable time before his death. His duties frequently called him into the boiler room where the explosion occurred, and he was familiar with the boiler, the manner of its use and its surroundings.

About the month of December, 1884, the defendant procured a large steam boiler, of some one hundred horse power, to-be built for it by B. W: Payne & Co., of the city of Elmira. .This firm was extensively engaged in the manufacture of boilers, and was of good credit and reputation in their avocation and business.

The boiler was set up in the defendant’s manufactory and commenced being used by it about that time, and continued to be used down to the time of the explosion.

The engineer and those employed by the defendant in and about the running and operating of the boiler were, so far as the evidence shows, competent for the places they filled, .and the explosion was in no way chargeable to any negligence on their part.

While the boiler was being used, and late in the fall of 1885, it was discovered that steam escaped from the middle of the horizontal beam on the left hand side and near the second plate on top. An experienced person was immediately called in by the defendant, and remedied the difficulty by caulking. It appeared that it was not unusual for steam to escape at the seams, and that the proper remedy was to caulk.

In the middle of February, 1887, steam was again discovered escaping from the seam on top of the boiler, and again a competent person was called in, and again caulked it at that place.

There is no evidence that steam of consequence escaped after that. In the month of April, before the explosion, the boiler was inspected and examined quite thoroughly by persons qualified for the duty, and found to be all right.

Evidence was given tending to show (as discovered after the explosion), that the boiler was made from an inferior quality of lion, and that it was improperly built, in this, that in riveting the plates the holes were not properly drilled or the rivets properly set It also appears that so far as shown upon the surface the iron appeared good, and that its defective character could only be discovered by cutting or breaking, and the defective riveting only by taking them out, because the heads entirely hid the holes from view

The boiler was inspected and examined by experienced men, giving their attention especially to the business, as often as once in four months during the whole time of its use, and pronounced safe. How the explosion occurred or what caused it does not appear

Some evidence was given tending to show that the defendant, through its officers, had personal knowledge of the leakage of steam and some other claimed defects in the boiler. The ordinary life of a steam boiler properly cared for is from twenty to twenty-five years.

Upon submitting the case to the jury the learned judge, among other things, instructed them, "“If the defects in this boiler were such as were known or discoverable by examination or the application of known tests, then the defendants are chargeable whether they knew it or not.’’ To this the defendant excepted.

The defendant requested the following instructions : “If the jury find the explosion was caused by defects in the boiler which the defendant did not know of, and they used reasonable care to ascertain all defects, then the verdict must be for the defendant.” This request the court refused, remarking that he would adhere to the rule before stated. In connection with this matter, the defendant also requested the following instructions to the jury: “ If the jury find that the accident was caused by the unskillful manner the riveting was done in the boiler by the manufacturer, and this defective riveting could not be discovered by reasonable inspection, and was unknown .to the defendant, then negligence cannot be imputed to the defendant for such unskillful riveting. ” This request the court denied, and instead the court say: “I say if it could be discovered by examination and the application of known tests.” To this and the preceding instructions and refusals the defendant excepted. These several propositions are closely allied.

In refusing the instructions asked for, and in charging the jury as aforesaid, we-think the court erred.

It is the duty of the master, and forms a part of the contract of hiring, to furnish for the use of the servant in the business in which he is to engage, proper machinery, materials, and appliances necessary for the work to be performed, and Iso competent and skillful fellow servants; and if he fails in these obligations, and an injury occurs to the servant by reason thereof, he is liable; and this is as far as his liability extends Wright v. The N. Y. C. R. R. Co., 25 N. Y., 562; Besel, Adm’r, v. The N. Y. C. R. R. Co., 70 N. Y., 171, 173; Coughtry v. Globe Woolen Co., 56 N. Y., 124; De Graff v. The N. Y. C. R. R. Co., 76 N. Y., 125; Hickey v. Taaffe, 105 N. Y., 26; 6 N.Y. State Rep., 426. And he is liable for an injury to the servant caused by defective machinery, the defects in which could have been discovered by th e exercise of proper care. Stevenson v. Jewett, 16 Hun, 210.

In measuring the master’s duty and reasonable care which he is bound to exercise, reference must be had to the business in which the employment is had and_ the exigences which serve to measure the vigilance required.

The master is not absolutely bound to furnish his servant with safe machinery. Such a rule would make the former an insurer, and liable for injuries, though he exercised the greatest diligence and care in the construction or purchase, or in the operation of machinery. The master does not guarantee the machinery is perfect. The law only requires him to use due care and diligence in its selection and use, the amount of care is measured by the circumstances of each case, dependent upon the kind of machinery used and the risks incident to its use, and the hazard of the business in which it is used. Follett, J., in Jones v. N. Y. C. R. R. Co., 22 Hun, 286.

The deduction from the foregoing rules is, that the master is bound to exercise reasonable care and diligence in the selection of and in the maintaining of machinery used in the business. What is reasonable care depends upon the kind of machinery furnished, and is measured by the hazard attendant upon the conduct of the business, having these in view. The master is required to exercise reasonable care and diligence to ascertain that the machinery is reasonably safe and fit' for the purposes to which it is to be applied.

The instructions given and to which exceptions were taken, went further than this, and required the defendant to show that he had applied all known tests to determine the safety of the boiler. If an obligation as onerous as this rests upon the master, it can only be found in those cases where the hazard is great, and where it is shown that known tests exist and could be" applied to discover any latent or concealed defect, and to guard against the results which might reasonably be expected to flow therefrom; and that the master had failed to apply them. 106 N. Y., 512: 11 N. Y. State Rep., 26. In this case we find no evidence showing what known tests existed which the defendant could apply to discover the alleged defects and which were omitted; and the jury were left to determine, of their own volition, what tests, in their judgment, the defendant ought to have applied. Evidence was given upon the trial tending to show that the iron out of which the boiler was constructed, was of an inferior quality. This could only be discovered by cutting or breaking. Yet it will hardly be concluded that the defendant having obtained the boiler from reputable manufacturers, was required to make this test in order to free itself from the charge of negligence by its employee. So also it was attempted to be shown, and evidence was given tending to prove that .the sheets of this boiler were not properly riveted, a fact which if it existed was only discovered after the explosion. The defect in this regard consisted in the claim that the rivet holes were not drilled true, and that the rivets did not properly fit them. It also appeared that this defect was discoverable only by taking the boiler apart by removing the rivets; that the heads and battened ends entirely covered the defect from view or other inspection. It cannot be claimed that to free itself from negligence in this_ regard, it was defendant’s duty before putting the boiler in use, to make this examination or test. And yet under the instructions given, the jury were left at liberty to find that this duty devolved upon the defendant^ and. having omitted it, that it thereby was guilty of negligence.

In the absence of evidence as to what known tests it would have been proper to apply or resort to, and that the same were not applied by the defendant, the jury were left confused and in doubt as to their duty, and were at liberty to determine for themselves what tests the defendant was bound to apply, and what inspection to make to bring itself fully up to a discharge of the obligations it owed the deceased. While a juryman might think he knew what known tests were, or at least, imagine he did, still his ideas in this regard might be far from accurate, and the rights of the party left to the uncertain elucidation of a confused notion upon the question submitted.

Judgment and order reversed, and a new trial granted, costs to abide the event.

All concur.  