
    James Kelley, as Administrator, etc., of Frank Kelley, Deceased, Appellant, v. American Locomotive Company, Respondent.
    Fourth Department,
    July 9, 1907.
    Negligence — injury by opening of stopcock on locomotive — suitable machinery ^ instruction as to danger — failure to promulgate rules.
    A blow-off cock of a locomotive situated below the boiler and worked by lever and rod extending, up to the running board, from "which place it is necessary to operate it to blow sediment from. the boiler, is not a defective appliance although not closed by a plug or cap. With such a plug it would be necessary to go under the engine-to operate the cock.
    An employee who has. worked for two years in a locomotive plant will be assumed to have acquired knowledge of ' locomotives and that steam will escape from a locomotive boiler if the blow-off cock is opened, and when such employee has been killed by steam escáping'from such stopcock, which was opened in a manner unexplained, the question of the master’s negligence in failing to instruct' as to this danger should not be submitted to the jury.
    When under the evidence the only explanation of the accident is that the employee himself accidentally opened the stopcock, while working in close proximity to it, a recovery cannot be based upon the failure of the master to promulgate rules prohibiting the opening of the stopcock without ascertaining that no one is at work, under the engine. Such rule would not have prevented the employee himself from accidentally moving the lever.
    Appeal by the plaintiff,' James Kelley, as administrator, etc., from a judgment of the Supreme Court ip favor of .the' defendant, entered in the office of the clerk of the county of. Chautauqua on the 7th day of April, 1906, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case after a trial at the Chautauqua -Trial Term.
    
      John L. Sullivan, for the appellant.
    
      Elton D. Warner, for the respondent.
   Williams, J.:

The judgment should be affirmed, with costs.

The action was brought to rebover damages, for the death of plaintiff’s intestate, alleged to have resulted from the defendant’s negligence'. The nonsuit was granted .on the-ground that there was a failure to prove any negligence on the part of the defendant which resulted in ■ the death. ■. The immediate causé of death was injury by-steam escaping from the blow-off cock of a locomotive. This stopcock was attached to a pipe extending from the lowest-part of the boiler. It was about ten inches below the boiler, and had a. horizontal Opening about three inches in diameter. Attached to the stopcock ivas, a horizontal lever, eighteen inches long, .extending' towards the rear of the locomotive. This* lever was used to open the stopéo'ck, and could be operated by pressure against the same, of pulling a rod attached to it and extending up to the running board. ' The construction was a proper and necessary one to put on locomotives, so as to allow the engineer' by its use to clean out the., boiler. This stopcock was by some means opened when deceased was .at work in' close proximity to it, and the. injury was indicted which resulted in death. There'.is no suggestion that the stopcock opened of' its owii accord, or.was opened by other means than the moving of the lever by some'.'one. The two living witnesses present at the time of the accident say they did not move-the' lever." If this is true, the lever must have been accidentally moved by the deceased himself.

The suggestions of negligeneé' by the' defendant, made here are:

First. Failure to furnish a safe place to work.
Second. Failure to instruct. deceased as to dangers incident to the work .
Third. Failure to promulgate' rules ás to the employment.

The firét ground.seéms to involve not'so much a safe place to work as safe and suitable machinery and appliances. The claim made is that tlie placó should have been made safe by.inserting in the opening of the stopcock a plug or.cap-. The stopcock seems-'to have been constructed and used in the ordinary,-usual way. There was. no danger to be apprehended- from it unless a person was in close proximity to it when it .was opened and the . locomotive liad steam on. To be effectively used it would seem to be essential to have it so the engineer could operate it by pulling upon the rod-on the running board without going under the locomotive and removing a plug or cap from the opening. There was some effort made to show that it was usual to make use of the cap or plug, but no evidence to that effect was elicited. •. On the contrary, the witness said it was not the custom to make caps or plugs for the openings; that he had not seen any; that the purpose of the thread in the inside of the opening was to enable the engineer, if he desired to keep the locomotive, clean, to attach a pipe to carry the dirt and sediment from the boiler outside. We think there was no basis in the evidence for the submission of this ground of negligence to the jury.

The second ground relates to the deceased’s knowledge of the dangers -of steam escaping from the stopcock. There is no evidence directly that deceased had no knowledge or was not informed on this subject. He had been at'work in defendant’s plant for about two years under the same foreman. He had not worked at this particular'kind of labor all that time; but he was about the plant-, and we may assume acquired some knowledge of locomotives and the operation of steam. He "was the head man in charge of the work at the time of the accident, and the other man was his helper. . He must, therefore, have been a mail of some mind, not a mere common laborer. He had put the bands on four locomotives that week. — just the work he was engaged in when he received liis injuries — and all these locomotives had stopcocks on, constructed like the one in question. They were cold, had no steam on, but it cannot be assumed, he was ignorant of the nature’of steam, or that it would escape from the boiler if the stopcock was opened, or. that he did not know how it was opened. He did know this boiler had steam on, as it was warm. "We think there was no reason for "submitting this ground of negligence to the jury,, under the evidence.

The third ground relates to rules. We fail to see what rules could have' been formulated to prevent this accident. If the lever had been moved by- some one connected with the locomotive, by pulling up the rod on the running board, it might be argued that a rule would have been proper in analogy to the rule ip case of a man cleaning the ashes from tinder the locomotive, that the locomotive should not be moved until it was ascertained that no one was under it; in this case, that the engineer should not operate this stopcock to clean out the boiler until it was ascertained that no one was at work under the locomotive. But would a rule be necessary to prevent the laborer himself from accidentally moving the lever, and opening, the stopcock while his face was in close proximity to it ? It seems to us. not to be a' matter for the promulgation of rules.

We conclude that the trial court properly granted a nonsuit in, the'case and- that the judgment should be affirmed.

All concurred.

judgment affirmed, with costs.  