
    Alvaro J. Utter, Respondent, v. International Paper Company, Appellant.
    Fourth Department,
    November 17, 1909.
    Blaster and servant — negligence — explosion of steam pipe — act of fellow-servant.
    Where the plaintiff’s fellow-servant employed to operate a paper machine negligently opened the valve of a pipe containing steam at one hundred pounds pclinch pressure, so as to let the high pressure steam into a connecting pipe which he knew was designed only to carry steam at four or five pounds pressure, without partially closing the valve in the latter pipe so as to reduce the pressure of the steam admitted, whereby a wooden plug in the smaller pipe blew out injuring the plaintiff, the master is not liable, if the plug was amply sufficient, to resist the proper pressure.
    No finding of negligence can be based upon the fact that the master did not use a metal cap in place of the wooden plug although the latter might withstand higher pressure, for it is probable that the pipe itself, being designed to receive only five pounds pressure, would have exploded.
    Appeal by the defendant, the International Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 15th day of April, 1909, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    The action was commenced on the 27th day of January, 1909, to recover damages for injuries sustained by the plaintiff alleged to have been caused solely through the negligence of the defendant.
    
      
      Francis K. Purcell, for the appellant.
    
      Francis P. Burns, for the respondent.
   McLennan, P. J.:

None of the material facts in this case are in dispute and the important question presented by this appeal is: Do such facts tend to establish actionable negligence as against the defendant ?

At all the times mentioned the defendant was a domestic corporation engaged in manufacturing paper. It operated one paper mill or plant at Glen Park in the county of Jefferson, and another at Niagara Falls. In the paper mill at Niagara Falls there was a paper machine known as and called in the evidence “ Machine No. 3.” The accident occurred on the 18th day of November, 1908, at about half-past four a. m., from the blowing out of a wooden plug, which had been inserted in the end of a small steam pipe, which was located at what is called the wet end of the machine.

At the time of the accident the plaintiff was forty-three years of age. He liad been a papermaker, engaged in various capacities in the operation of paper mills, for twenty years; had been engaged in defendant’s paper mill located at Glen Park as machine tender for twelve years previous to the ninth day of November prior to the accident, when he was transferred to its mill at Niagara Falls, where he occupied the same position and operated the machine No. 3. By reason of his position as “ machine tender,” the plaintiff had charge of this machine. There were employed to work upon it three other men, known respectively as “back tender,” “winder man” and “fourth hand,” all of whom were subordinates of and subject to the orders of plaintiff.

The parts of the machine involved are very simple in construction. At the wet end of the machine, so called, there is a skeleton roll covered with wire cloth about eight or ten inches in diameter called a “ dandy,” extending entirely across the end of the machine. Its purpose is to smooth and finish the sheet of paper as it passes over it after leaving the wet end of the machine. As the paper passes over the “ dandy ” it is necessary that a small quantity of steam should be forced upon it, and to accomplish that purpose a perforated steam pipe from one to one and tliree-fourths inches in diameter extended across the machine in front of the “ dandy ” and about four inches from it, so that when the machine was in operation there would be a fine spray of steam playing continuously on the sheet of paper as it passed over the “ dandy.” The end of this perforated pipe was stopped by a wooden plug about eight and one-half inches long, which extended into the pipe four and one-half inches and was wet and swollen from steam and water. A main steam pipe, which carried a steam pressure of 100 pounds to the square inch, was connected with the small perforated pipe. On such main pipe there was a valve which, if turned off, prevented any steam from passing into the perforated pipe, which was only intended to carry a pressure of four or five pounds to the square inch. In fact a greater pressure of steam in the perforated pipe would cause the steam to strike the paper with too much force and would injure it. The steam was let into the perforated pipe from the main pipe by means of another valve called in the evidence Valve Ho. 1.” That was located at the end of the perforated pipe next to the main pipe. So that when valve Ho, 1 was shut off, no steam could pass from the main pipe into the perforated pipe, and the amount of steam which would pass into it was regulated by such valve, and, as before said, when the valve in the main pipe was shut off no steam could pass into the perforated pipe, regardless of whether valve Ho. 1 was closed or open. These two valves were in charge of, and were controlled, by an employee, by the name of Theisen, who was known as the backtender, and the two valves were close together and could be reached by him from his place of work, and opened or closed at will.

On the day in question it became necessary to • remove the dandy ” in order to clean it, and the plaintiff and Theisen removed and cleaned the “ dandy.” In preparing for its removal Theisen closed the valve Ho. 1 in order to prevent steam from passing into the perforated, pipe. He discovered that there was a slight leakage of steam into the perforated pipe from the main pipe and he thereupon closed valve Ho. 2, which prevented any steam from passing into the perforated pipe or through valve Ho. 1. When the dandy ” had been cleaned and again placed in position in the machine and adjusted Theisen, the backtender, inquired of the plaintiff if it'was all right, and being assured that it was, he first opened valve Ho. 1 and discovered that no steam passed into the perforated pipe, the reason being that he had previously closed valve Ho. 2 on the main pipe. Theisen thereupon opened valve Ho. 2 without closing valve Ho. 1, which let the full head of steam onto the perforated pipe, blowing the plug out of the end of the pipe and causing the steam and hot water to escape and scald the plaintiff.

The proper method of turning the steam on, as Theisen well • knew, because he was an experienced, capable man, was to close valve Ho. 1, then to open valve Ho. 2, tíien to. open valve Ho. 1 sufficiently to let the desired amount of steam into the perforated pipe, to wit, at a pressure of four or five pounds to the square inch. If this had been done, it is practically conceded that no accident would have occurred, because there is no evidence which tends to show that four or five pounds pressure would blow out the plug which was in the perforated pipe.

The cause of the accident is fully explained by Theisen, the back-tender. He testifies, in substance, that he forgot to close valve Ho.

1 before opening valve Ho. 2, and that he gave valve Ho. 2 a full turn, and as a consequence a great amount of steam was let into the pipe which caused the accident.

The only cause of negligence charged against the defendant is that it failed in the performance of its duty by plugging the end of the perforated pipe with a wooden plug, and that as a result he was not furnished with a safe place in which to work; that the perforated pipe should have been provided with a brass or an iron cap, or an elbow with hose attachment.

It was proven that the machine was of standard make, although made many years before the accident. Also that the wooden plug had been used in the perforated pipe precisely as on the day in question for at least five years prior to the accident and "that it had never blown out or any accident occurred. There is evidence tending to show that the use of a cap or an elbow with a hose attachment is a safer method of securing the end of such a pipe, and also that such pipes, in modern paper machines, are furnished with such appliances. But it is nowhere suggested in the evidence that if only the amount of steam which was necessary and required had been let into the perforated pipe, to wit, a pressure of four or five pounds to the square inch, the plug would not have blown out; that with such pressure it would have performed the function intended precisely as it had done for the five years previous. Practically, the complaint of the plaintiff is that the defendant did not furnish a perforated pipe with such appliances as would stand- a steam pressure of one hundred pounds to the square inch, when such perforated pipe was only designed and calculated to stand a pressure of four or five pounds to the square inch. If the pressure of steam from the main pipe had been turned onto this pipe which was perforated by holes and intended to withstand a very slight pressure, the chances are that some other portion of the pipe would have exploded. The cap or elbow with hose attachment which is used upon a modern paper machine is not so used for the purpose of withstanding a pressure sucli as would come from turning on the steam from the main pipe, but to provide a means of escape of steam which had condensed into water, which the evidence tends to show had a tendency to injure the paper which was passing over the “ dandy.”

We think there is no basis for the finding of the jury that the defendant was negligent because it failed to furnish a perforated pipe with such attachments as would stand a pressure of one hundred pounds to the square inch, when it was only intended that four or five pounds to the square inch would be all the pressure to which such perforated pipe would be subjected. The accident occurred, not because the plug was not inserted in such manner as to withstand the steam pressure intended to be applied to the perforated pipe, but because that pressure, through the mistake and forgetfulness of the backtender, was increased twentyfold. For such mistake the defendant is not liable.

The situation which is presented in this case exists practically in every factory where steam is used. The main pipe which carries the steam to all parts of the building is so constructed as to withstand a very great pressure. 'By means of valves a smaller quantity and in some cases a very small amount is taken from the main pipe to operate various machines or different.parts of a machine. If an experienced workman, by mistake, turns the full head of steam from the main pipe into a small or perhaps frail machine, yet suitable and safe for the work intended, and it explodes and injures another workman, the defendant is not liable. It is unnecessary to refer to or discuss the authorities cited by the respective counsel. A pipe with a wooden plug in the end had performed the work required of it for five years or more safely and without accident. It was only designed to withstand a pressure of four or five pounds to the square inch. It was of sufficient strength and the plug was arranged so as to withstand such pressure. A coemployee of the plaintiff subjected such pipe to a pressure of one hundred pounds by mistake, without reason, without excuse, and when such pressure of steam would have destroyed the paper which was being manufactured. 'We think the defendant not liable for the negligent or forgetful act of such coemployee.

We conclude that the evidence fails to tend to establish actionable negligence on the part of the defendant.

Having reached such conclusion, it is unnecessary to consider any of the other questions presented upon this appeal.

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

All concurred; Williams, J., not sitting.

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