
    MURPHY v. BOSTON & ALBANY R. R. CO.
    
      N. Y. Supreme Court; At Circuit, Third District, Albany,
    
      May, 1880.
    Negligence.—Master and Servant.—Injury to Subsequent Operative from Dangerous Condition.
    Employers engaged in constructing or repairing machines for others are not liable to their employees engaged in the later part of the work, for an injury resulting from the fact that another employee in the same shop so negligently did the prior part of the work, as to leave the inachine unfit to have the later part of the work done upon it. The general rule that the master is bound to provide a machine which is safe for his servants, does not apply where the accident occurs not in the operation of a machine belonging to, or used for the master, but in his construction or repair of a machine for others.
    Trial at circuit.
    Catherine C. Murphy, as testatrix, brought this action against the Boston Albany Railroad Co., to recover damages upon the death of her intestate.
    At the close of plaintiff’s case, a motion was made on the part of defendants for a nonsuit. The facts as proven were substantially as follows :—
    The plaintiff’s intestate, a machinist employed in the machine shop of the defendant at East Albany, was killed by the explosion of a boiler of a locomotive engine belonging to the defendant while engaged in assisting to set the “pop valve” of the same in the shop, on August 6, 1879.
    Seventeen months before the accident, and again in December and January, the engine had been overhauled and repaired in the defendant’s shop, and reported finished. The tests applied in overhauling her were personal inspection and the hammer tests.
    About two weeks before the explosion, the engine was again taken to the- said shop of the defendant, for repairs of defects which had been reported by the engineer who had been running it on the road. The rules and regulations of the company required all its workmen to be constantly on the watch to ascertain the need of repairs, and those of the shop commanded that the mechanics in the shop to whom the master mechanic thereof or the foreman committed the duty of making the necessary repairs of an engine, should repair the defects reported by the engineer, and carefully examine the engine to discover if any other defects existed in the same, and if there were any of an ordinary character to repair them at once, but if the same required any of considerable magnitude to report the same to the master mechanic or foreman for further instructions. That it was impracticable for the master mechanic or foreman to make personal examination of all the engines which came into the shop for repairs, and that duty was committed to the subordinates, who were competent and experienced.
    The evidence showed that the mechanics who had charge of the. repairs to the boiler of the engine reported to the foreman that the necessary repairs to it had been made, and that the boiler was all right, and the mechanics who had charge of the repairs to the machinery of the engine reported to foreman that the necessary repairs to it had been made, and it was all right,and that the boiler-makers and machinists worked upon the engine at the same time and in the same place in the shop. That after these reports had been made, under direction of the same foreman, the engine was fired and steam was made in the. boiler by two workmen in same shop for the purpose of making the engine ready to set the “pop valve,” which was necessary in order to complete the repairs to the engine, before it was turned ou,t of the shop for service. That after these workmen had reported the engine ready with steam, the foreman directed Smith, one of the machinists who had been at work repairing the engine, to set the “pop valve,” and Murphy, the plaintiff intestate, another machinist in the shop, to-assist him in watching the fire and reporting to Smith the pressure of steam in the boiler, as indicated by the gauge. That the “pop valve” was to be set at.a pressure of steam of 133 pounds to the square inch, which was the same pressure which the engine was carrying when it came into the shop. That the only way to set. the “pop .valve” was by following the index of steam as noted by the gauge, and that the first and necessary duty in setting the same was to test the gauge by a test provided for that purpose, so as to ascertain if it was right-, and examine the pipe which communicated steam to it from the boiler to ascertain if it was unobstructed.
    The neglect, if any, in the case as shown by the plaintiff’s testimony was that of the mechanics (of whom plaintiff’s intestate was one) to whom the doing of the repairs and testing the gauge and cleaning the pipe leading from the boiler to it, was committed, in omitting the duty of thorough inspection and examination. That said mechanics worked together in the same shop, in the same circle of employment and for the same and a common purpose, which was to put the engine, which had come into the shop reported defective, in perfect repair.
    The engine was examined after the explosion, and it was found that a.number of stay-bolts in the right leg of the boiler were broken by rust, and the outer sheet of the boiler, through which the stay-bolts passed was eaten away about eighteen inches in length by rust, to the extent of about one half of its original thickness at the mud ring of said boiler. It was also found that the pipe communicating steam to the gauge, which should show the amount of steam in the boiler, by means of which the “pop valve” could only beset, was nearly stopped by incrusted matter, so that it could not indicate the true state of the pressure of steam in the boiler at any given moment.
    
      A. J. Parker, A. J. Parker, Jr., and B. Countryman,, for the plaintiff.
    
      Hamilton and Frederick Harris, for the defendant.
   Westbrook, J. [orally].

I have, during the interval which the adjournment of the court last evening has given me, considered the points which this motion for a nonsuit presents, and having reached a conclusion, I will state it, and very briefly give the reasons which lead me to it.

One, and I think the main question which the motion involves, is: Are employers who construct or repair machines liable to their employees who are engaged in the construction or repair of a machine upon which they are ordered to make certain repairs, provided some other workman in the same shop has so carelessly done his prior part of the work of repair as to leave the machine unfit to have any additional work done upon it, and in consequence thereof the employee who undertakes to do the last work is injured %

The general rule undoubtedly is, that an employer who furnishes the machine for his servant to work with is bound to provide one safe for that purpose; but when a machine which is safe has been furnished, the men who operate it ordinarily take upon themselves the risk of their fellow-workman’s carelessness. When, however, an accident occurs, not in the operation but in the construction or repair of a machine for operation, in the doing of which, the party, a servant, is injured, such accident being caused by the negligence of another servant who had done a previous and different part of such work of construction or repair, is the master then liable in damages for the injury ?

If it be admitted that men who work for a common object, and a common employer, take upon themselves the risk of the carelessness of their fellows—as illustrated by the case of the engineer and fireman of a locomotive, in running which, each performs a different duty—then, why is not the same rule applicable to men who work for one object, for a common employer, the employment being the repair or construction of a locomotive, in doing which different men must perform distinct and separate work ?

None of the cases cited touch this exact question, and that must therefore be solved amid the hurry of the circuit (which allows no time to search for precedents), by the application of general rules.

In Wood on the Law of Master and Servant, § 435, it is said “It is subjection to the same general control, coupled with an engagement in the same common pursuit, that affords the test.” In the construction or repair of a locomotive, all workmen engaged for that purpose are, as it seems to me, within this rule, though the labor of each may be different. In the progress of construction or repair, different workmen have different work to do upon the same machine, but as they are all thus occupied for one object, and for a common employer, each engaged thereupon must therefore assume the risk of the carelessness of the other.

In the case before us, the locomotive, Sacramento, was sent to the repair shop of the defendant to be put in order. No one man was to do the whole work, nor did any one employed upon it suppose it to be in a safe condition, for if it had been all knew it would net be in the shop for repair. The boiler-maker was to repair and examine the boiler ; machinists were to make good and adjust the machinery ; and the work of setting the safety valve at a point where, it would hold 133 pounds of steam to the square inch, and no more, was a part of the necessary work of repair. All the men thus employed were workmen in the same shop, and their business was to fit locomotives for use. The deceased, a skilled machinist, by the order of the superintendent or foreman of the repair shop, was assisting one Smith, also a machinist, to set the safety valve, when the explosion took place.

Construing the evidence most favorably for the plaintiff (it must be so construed for the purposes of this motion), it will be assumed that the boiler-maker had not thoroughly done his work, so that the boiler was insecure by reason of broken staybolts • and the channelling of the- plates of the boiler near the mud-ring. Assuming all this to be true, whose negligence was it ?

It was the duty of the boiler-maker—and that duty is proven by the foreman of the shop—to put the boiler in repair, and he had pronounced it, when it left his hands, safe for use. He had not, however, performed his duty, as must be assumed for the purposes of this motion, and for his negligence the defendant in my judgment is not responsible. There is no pretense that he was an incompetent man ; and his orders were' to repair the boiler and make it safe. He was a workman in the same shop with the deceased, employed with him for the same general purpose, to wit, the placing in order of a locomotive for use. The different kinds of labor done to produce the result did not make them workmen for a different department of service, any more than the different occupation of engineer and firemen upon a locomotive to run her, make them -servants in different departments, and the company liable for the negligent act of either which occasions injury to the other.

It was argued by the learned counsel for the plaintiff, that when a workman receives orders from his superior to do work with a machine, that the employer guarantees the fitness of the machine to do the work ordered, and that there is no good reason why the same rule should not apply to the case of a workman ordered to make repairs upon it. .The argument is fallacious, for in its premise it overstates the rule as to the liability of the master. It is true that the master is bound to furnish a machine fit to do work with, but it is. not true that when an order is given to operate the machine, that he is responsible for an act of carelessness of a co-servant, which has rendered the machine unfit for the service intended.

Take the case, for instance, of a locomotive which a fireman and engineer are given to operate. The conductor of a train, which is to be hauled by the engine, gives orders for the start. When, however, such order is given, if, through some act of carelessness of one of the persons (the engineer or fireman) in charge of the locomotive, it has been either rendered or left in a condition unsafe to ■ do the work ordered, and the other, not in fault in obeying the order to start, is injured, is the master whose servants they all were, to respond in damages for such injury % Manifestly not, for the employee who gave the order had no right to assume that either the engineer or fireman had been negligent, and if he had been, it was the precise risk that the party injured assumed, for all were within the same circle or sphere of employment.

What is true in the supposed case is equally true in the one on trial. The boiler-maker, the foreman of the shop, the deceased and Smith, who together were adjusting and setting the safety valve, were all engaged in the same character of work, to wit, preparing the. engine for service. The foreman of the shop, when he directed the setting of the valve, had a right to assume the fidelity and thoroughness of the boiler-maker’s work, just as much right so to assume as the conductor in starting the train had a right to suppose that neither fireman or engineer had made or left the engine unsafe to obey his order. And in neither is the master at fault, for it is simply impossible for him to test every man’s work, and to know that every servant has done his duty. The law goes far enough, when it holds the master responsible for negligence committed in a department of service different or separate from that in which the injury occurs, and the servant must himself assume the risk of the negligence of his fellows in the same department. To hold otherwise would be the obliteration of all risk by the servant for the carelessness of his fellows, and the assumption- by the master of liabilities hitherto, at least, unknown to the law, and which would impose upon him duties impossible to perform.

The case of Besel v. New York Central and Hudson River R. R. Co. (70 2V. T. 171) is nearly, though not precisely, analogous. The plaintiff’s intestate was at work in the yard of the defendant under a car standing upon the repair track, repairing it. While thus engaged other cars were being drawn away by the engine, when a coupling pin broke and the disconnected cars ran back upon the down grade, striking the car upon which deceased was at work and killing him. It was held that the yard master and head brakeman were, with the deceased, co-employees of the defendant, and for their negligence the defendant was not responsible.

This decision was placed upon the ground,—I quote from the opinion of Judge Miller:—“ that the men were engaged in the same common work for the same common purpose, and the acts of no one of them could render the defendant liable for the injury to another.”

If the principle just enunciated was applicable to that cause, it must be to the one on trial. The man killed in the case referred to was a mechanic ; the men who were careless were those who moved the cars to be repaired. Their work was different, but it was all aimed at one result—the repair of machinery. In the present case the work of the boiler-maker and machinist was different, but they also worked for one object, the repair of a locomotive, and being thus engaged, the rule of liability of the employers must be the same.

I have not overlooked the point that Smith, who was engaged with the deceased in setting the safety valve, may also have been careless in not seeing that the pipe leading to the steam indicator was unobstructed; and that Smith’s carelessness, if he was careless, was that of a co-employee. This view, however, involves a question of fact—whether the steam was put up higher-than 133 pounds to the square inch 2—and, therefore* the decision nonsuiting the plaintiff is not placed upon that ground, but upon that which we have considered.

As first I thought that I would, for the purposes of this trial, hold that the defendant was liable if the locomotive boiler was not in a condition to bear the strain of the steam pressure—133 pounds to the square inch— which the deceased and Smith were directed to put upon it in setting the safety valve ; and if the jury found against the defendant upon such an instruction, grant a new trial, if, upon further consideration, my present views of the law remained unchanged. Reflection, however, satisfied me that this course would be unjust to the plaintiff, because the court above, while differing from me upon the ground upon which the new trial was granted, might still affirm the order for some other reason, and the case might come back again for trial without the point which has been discussed being settled beyond review.

The plaintiff is entitled to a ruling which will enable her to present distinctly the question which is now decided, and, if necessary, present the same to the court of last resort unembarrassed by any other difficulty.

The nonsuit is, therefore, granted, for the sole and only reason that the defendant is not, as I think, responsible to the plaintiff for the acts of other servants in the same department with him, who either failed to put the boiler in a condition of repair sufficient to sustain the pressure of steam which the deceased intestate was ordered to apply, or omitted, in the act of repair, including that of the setting of the valve, anything which should have been done to render the work upon which the deceased was engaged at the time of the accident, as safe as the nature of the service would permit.  