
    Thomas Loonam, plaintiff and appellant, vs. William E. Brockway, defendant and respondent.
    A master is not liable to his servant for injuries sustained by the latter while using machinery, by reason of its imperfect construction, in the employ of the former, where the servant had the same means of knowledge of its safety as the master, and nothing occurred at, or before the accident, to indicate any danger, such as demanded or suggested precautions which were omitted.
    (Before Moncrief, Garvin and McCunn, JJ.)
    Heard December 16, 1864;
    decided December 31, 1864.
    This was an action brought for the recovery of damages for the loss of an arm of the plaintiff, who was servant in the employment of the defendant, a brewer, carrying on business at 11th street, in the city of Hew York.
    The facts are as follows : The plaintiff was a servant in the employ of the defendant as a common laborer, and was directed by the defendant to clean barrels and casks in use at the brewery of the defendant by a new system of cleaning, by means of a steam apparatus, which consisted of a boiler, from which was constructed a pipe for conveying the steam into the bung hole of the vessel; to this pipe there was no guage or safety valve, or anything to indicate the pressure, or regulate the force of the steam as it issued from the boiler, with the exception of a small wheel or turn off, near the end of the pipe, to stop the. steam from entering the vessel. On the 20th of December, the plaintiff was directed by an employee of the defendant to steam or clean some hogsheads by means of this apparatus. The plaintiff did as directed. The steam rushed rapidly into the vessel for about five minutes, when he went, to turn it off by means of the wheel. The vessel exploded, and blew off the plaintiff’s right arm. The action was tried before Justice Monell, and a jury. After the evidence on the part of the plaintiff had closed, the defendant’s counsel moved for a dismissal of the complaint. The judge, in granting the motion, said : “ This is a question of great importance, not only to the parties in this action, but it is so by reason of the principles involved in it. The action is brought to recover damages for injuries received, as is alleged, by the negligent acts of the defendant. It has of late been said that there are no degrees of negligence—that there was no distinction between gross and common negligence; the plaintiff is entitled to recover damages. But, on the other hand, the plaintiff will not be entitled to recover if he was guilty of the slightest degree of negligence. In a case of this kind, it becomes the duty of the court to examine the evidence, and apply the law according to the principles decided by the courts. The office of the jury is simply to aid the court in determining the questions of fact according to the testimony; and when the facts, according to the testimony, are not disputed, it always becomes the duty of the court to dispose of the case. In charging the defendant with negligence, much depends on his knowledge, because all cases of this kind go upon the hypothesis that there was personal negligence on the part of the defendant; now, there is an entire absence of proof that there was any defect in this machinery, and that would seem to be sufficient to relieve the defendant from responsibility. Now, it has been said, that a man shall not put his servant to the performance of a duty that is hazardous, unless he protects him. It has not been suggested, in any part off this case, that the service is entirely voluntary on the part of the servant; it seems to me that that is entitled to very great weight. It is also necessary to consider whether it is the servant’s duty to ascertain whether the employment is dangerous or not. In the late case of Wright v. The New York Central Railroad Com
      
      pany, it, seems to me the decision of the court covers every principle applicable to this case; and one principle determined in that case is. that where the servant has the same means of ascertaining the extent of the hazard which he runs in the performance of his services, the master or employer is not liable— not that the servant has the same amount of intelligence, but that if he has the same opportunity of knowing these things, then the master is not liable. So that, if a person who is ignorant of machinery engages to run a steam engine, and is injured by a defective construction of the machinery, then the master will not be liable. Even in the case of running a machine which was not defective, but did not contain all the appliances of modern science, he having voluntarily entered into the service, the master would not be liable. The law, therefore, in this case is, that if he entered voluntarily into this service, having the means and oppSrtunity to investigate for himself, he takes the risk. Therefore, it seems to me, that these principles are fully settled in the case of Wright v. The Central R. R. Co., (25 N. Y. 566,) and there is no proof in this case to .render the defendant liable. It seems to me that this case presents another point, and that is, there is not an entire absence of proof of negligence on the part of the plaintiff. He was there when the first experiment was tried ; he had the same means as others of ascertaining whether it was dangerous to life or not. At the time this accident happened he was at the cask. He knew from his former practice what the stopcock was for, and what the plug was for; so I cannot perceive myself, with the exercise of ordinary care and understanding on his part, by turning off the steam with the cock, or by putting in the plug, why he could not have secured himself against danger. Under these circumstances, I would do great injustice to the defendant to suffer this case to go to the jury. I have a very great sympathy with the plaintiff, but perhaps his greatest misfortune is, that the law does not allow him to recover. I therefore dismiss the case, but I desire to suspend judgment, and let it go to the general term.”
    To which ruling the plaintiff excepted. Whereupon the exceptions were directed to be heard at the general term, in the first instance, and that the entry of judgment in the meantime be suspended.
    
      Edwin James, for the appellant.
    I. The judge erred in dismissing the complaint, because there was sufficient evidence to go to the jury as to the negligence or misfeasance of the defendant, both in not having the proper machinery to perform the duties for which it was intended, and that the machinery was imperfect, defective and dangerous. The question of negligence, in all cases, involves a question of fact, and it is only where a question of fact is free from all doubt that the court has a right to apply the law without the action of the jury. (McGrath v. The Hudson River Railroad Co., 32 Barb. 144. Bernhardt v. The Rensselaer and Saratoga Railroad Co., Id. 165. 13 N. Y. Rep. 353. Keller v. N. Y. Central Railroad Co., 24 Pow. Hr. 172. Hulesenkamp v. Citizens' Railroad Co., 35 Missouri Rep.)
    
    II. Every employer is responsible for injuries resulting to his employees from his own personal negligence or misfeasance. All men alike are liable to respond in damages for such injuries, and the relation of master and servant forms no exception to the rule. He is also liable for doing or directing negligent acts, regardless of the consequences liable to result therefrom. (Keegan v. The Western Railroad Corp., 4 Seld. 175. Ormond v. Holland, 96 Eng. Com. Law Rep. 101. Marshall v Stewart, 33 Eng. Law and Eq. 1. Patterson v. Wallace, 1 McQueen, 748. S. C., 28 Eng. Law and Eq. 48, 51. Bryden v. Stewart, 2 McQueen, 30. Ryan v. Fowler, 24 N. Y. Rep. 410.)
    III. It being the duty of an employer to exercise care and prudence that persons in his employ be not exposed to unreasonable risks and dangers, he is bound to use due diligence in protecting them from injury. (Connolly v. Poillon, 41 Barb. 366.) Thus a master is liable to his servant for injuries resulting from a defect in his machinery, and as ordinary care must be measured by the character, and exposures of the business, the degree required is higher where life or limb is endangered than in other cases, and the master is equally liable, although the negligence of a fellow servant contributes to the accident. (Cayzer v. Taylor, 10 Gray’s Rep.) He is also liable on the broad ground that the owner of dangerous machinery is bound to exercise due care that it is in a safe and proper, condition. Although the servant may have a knowledge of the fact, it is not fatal to his proceeding, for he may be utterly ignorant of the risk. (Holmes v. Clarke, 2 Am. Law Reporter, December, 1862, p. 107.)
    IV. The elements essential to • maintain the action in this case are, the dangerous nature of the steam pipes, the knowledge by the defendant, and the injury resulting from the sub-" sequent use of it, all of which are alleged and proved. 1. It rests on the same principle with that relating to injuries by animals known to be dangerous. (2 Starkie on Ev. 525, 6 Am. ed. 1837.) There the owner must, at his peril, keep the animal secure, or he will be answerable. Even negligence need not be alleged. (May v. Burdett, 9 Ad. & Ellis, N. S. 101.) 2. Using an engine known to be dangerous, is in principle like employing a servant known to be unskillful. For injuries resulting from this, the defendants would clearly be liable. (Coon v. The Utica and Syracuse Railroad Co., 6 Barb. 243, per Pratt, J.)
    
    VII. The adjudged cases relating to injuries to one servant by the negligence of another, do not conflict with, but rather maintain, the principle on which this action rests.
    1. They go" no further than to deny that the principal is liable to one servant for an injury sustained by the mere negligence of another, while both are engaged in the same service, the principal not being in fault, (Coon v. The Utica and Syracuse Railroad Co., 6 Barb. 231. Brown v Maxwell, 6 Hill, 594.)
    2. Hone of them deny, but on the coutrary most, if not all, of them concede, that the principal would be liable if he was in fault, as well as the servant, e. g. by employing him, with knowledge that he was unskillful, or by using an engine or boiler, or pipe, knowing it to be defective.
    
      3. The fact that the person employed, entrusted to select and erect the pipe, was in fault, as well as the defendant, forms no ground of defense. The plaintiff was a mere laboring man, and had not equal opportunity of knowledge with the defendant as to the danger, the latter having actual notice. Even if the plaintiff knew that the pipe was defective, he did not know that it was dangerous, this being a question of science on which experts might differ. The person entrusted to select and fit the pipe was engaged in a distinct employment from, that of the plaintiff; the defendant would therefore be answerable, even if he were without actual fault. (See per Gardiner, J., 1 Seld. 494, 495.)
    VIII. Using the pipe in question without guage or safety-valve to control the steam, was an act dangerous to human life, and having been done knowingly, the defendant is responsible even if the plaintiff is in some degree negligent, (which is not in evidence to excuse the defendant.) It must be shown further, that the plaintiff had notice of the danger. (Bird v. Holbrook, 15 Eng. Com. Law Rep. 91, 93 to 96. Loomis v. Terry, 17 Wend. 498, 499. Hartfield v. Roper, 21 Wend. 618. Lynch v. Nurdin, 41 Eng. Com. Law Rep. 422.)
    IX. The case shows that the defendant persisted in using the pipe in question, under circumstances evincing an utter disregard to every thing except his own profit and advantage. It is not a case of simple negligence, but of gross carelessness and wrong, and there is no principle on which he can escape responsibility. (Gough v. St. John, 16 Wend. 649. King v. Dixon, 3 Maule & Selw. 11. Ormond v. Holland, 96 Eng. Com. Law, 100.)
    
      Thomas C. T. Buckley, for the respondent.
    I. Even if the evidence established that the plaintiff’s injury was owing to the absence of an additional gauge or valve in the pipe, the defendant is not responsible.
    1. Because accidents occasioned by defects in principle, operation or arrangement of machinery are risks incident to the servant’s employment, against which the master is not bound to indemnify him. His protection is to decline the work. (Story on Agency, 6th ed. 453, h. note 4. Dynen v. Leach, 40 Eng. Law and Eq. 491. Hayden v. Smithville Man. Co., 29 Conn. R. 558. Griffiths v. Gidlow, 3 Hurl. & Norm. 648.)
    2. Especially is that rule applicable, where the plaintiff had the same knowledge, or means of knowledge, as his employer, the defendant, had. (Shipp v. East. Co. R. R. Co., 9 Exc. 223. Wright v. N. Y. Central R. R. Co., per Allen, J., 25 N. Y. Rep. 566.)
    3. The only qualification to this rule, is where the defendant is proven to have had notice of the dangerous character of the machinery; but no such proof was given. Ho previous • accident occurred to put the defendant on his guard.
    II. But there is an entire failure of proof that the accident was occasioned by any defect in the means used for cleaning the barrels.
    1. The plaintiff’s complaint is that there was no gauge to regulate or check the flow of steam into the barrel while being cleaned; the proof is, that there were two, viz.' the plug.in the barrel itself; secondly, the cock in the pipe, which was under the control of the plaintiff himself, and by which he turned on and shut off the steam. The barrel had cold water in at first, which was heated by the steam, and the hole in the plug in top of the barrel was to allow the steam, generated in the barrel by the heating of the cold water, to escape. That was a safety valve. On the present occasion no pipe burst, but the barrel itself broke all to pieces, from the plug being hammered down, and from the plaintiff letting in so much steam, that the water “boiled like mad." Such negligence deprived the plaintiff of any right of recovery, even if there was negligence attributable to the plaintiff in the construction or use of the means for cleaning barrels in use at the time. (Wilds v. The Hudson R. R. Co., 24 N. Y. Rep. 432.)
    2. There was an attempt to show that as an abstract question, an additional valve would have 'made the operation a safe one ; but the two witnesses by whotir that was attempted to be established, testified on eross-exaihination: That no general rule could be established, and that the necessity of an additional valve would depend on the distance the steam had to travel, (which, in this case, was over 224 feet in the open air,) the initial pressure at the boiler, which was not known, and the age and strength of the barrel. That the pressure on the barrel would depend on the quantity of steam in it, which quantity, of course, as above shown, was controlled by the stop cock on the pipe. The defendant is not liable even if an additional valve would have made it safer, the want of it being a matter of principle and construction, under the authorities in the first point.
    III. The amount of the whole case is :
    1. That there is neither allegation or proof of any defect in the materials composing the arrangement for cleaning the barrels. It is for this alone, and not for any defect, even if proved, in arrangement or principle, that the owner is liable.
    2. That there is no evidence of knowledge by the defendant of any defect in the arrangement.
    3. Even if the evidence shows any negligence attributable to the defendant, in any respect whatever, the plaintiff himself is not absolutely free from negligence in the management of the apparatus.
    The complaint was, therefore, properly dismissed, and the motion for a new trial should be denied, and judgment ordered for the defendant, with costs.
   By the Court, Moncrief, J.

It was said in Cook v. Bell, (30 Jur. 75, 20 D. P. 137:) “This case was tried before a justice of this court and a jury, and the argument was then as now very fully gone into. But, although the case was then fully heard and fairly tried, we do not regret that this appeal was taken and discussed, at great length, for it enables us to review the whole matter in a case where our leaning, if any, will naturally be with the plaintiff. When the labor to be performed is hazardous, it is fair to presume that it is also more than usually remunerative. This was not an action for injury arising from defect of machinery, or any defect of that nature ; the plaintiff wrought, it may he, under constant peril; that danger and peril were the ordinary condition of that species of labor.”

The learned counsel for the plaintiff conceded that this action was not brought for an alleged defect of machinery, but contended, as the complaint avers, that it was, in fact, the duty of the defendant to take due and proper care, and to provide all proper means to insure the reasonable safety of the plaintiff, as his servant, in the use and application of the said steam, &c., and alleges that the want of a guage to check and control the power and quantity of steam was negligence on the part of the defendant, for which, in law, he must respond in damages to the plaintiff. There is no allegation that the defendant knew, or ought to have known, of any thing omitted necessary for the protection of the plaintiff in the use of the steam, or that he was as well aware of the danger in its use as the plaintiff himself. The facts out of which the alleged duty of the defendant arises, are not stated ;■ it does not proceed from statute, as in England, with reference to fencing machinery ; not by contract, express or implied, as the apparatus was not defective, and was in the same condition at the time of the accident as it was when the plaintiff began his employment. The liability of the defendant would arise only from the fact that he was the cause of the injury by employing his servant in work, knowing that the machinery by which he carried on the work could not be safely used for that purpose, and that its use was accompanied by risk and danger. (Potts v. Plunkett, Amer. Law Regis, vol. 7, p. 555.) Such knowledge on the par.t of the defendant is the gist of the action. In England, a declaration without such an averment would be held-bad on demurrer. (Vose v. L. & Y. R. Co., 27 Law Jour. 249. 2 Hur. & Nor. 213. 4 Jur. 769. 25 Law Jour. 839. Williams v. Clough, 3 H.& N. 258. Priestley v. Fowler, 3 M. & W. R. 1. Potts v. Plunkett, supra, and Irish Jurist.)

It has been held otherwise here. (Byron v. N. Y. State Printing Telegraph Co., 26 Barb. 39.) The point was not raised in, Keegan v. The Western R. R. Corp., (8 N. Y. Rep. 175.) In the former case it was held that “the allegation of negligence would be sustained by proving the danger from the defect in the pole and that it was known to the defendants.” There was no such evidence adduced upon this trial; on the contrary, it would appear that the defendant did not consider the employment hazardous, as he illustrated the process to the plaintiff, and the latter successfully pursued the occupation without accident or complaint for fifteen days. It was not pretended that the defendant knew or had reason to believe that any defect or imperfection of the apparatus used by the plaintiff • existed until after the accident happened. The proper inquiry is, whether, at or before the time the accident occurred, there was any indication of danger, such as demanded or suggested precautions which were omitted. As nothing happens without a cause, so perhaps no accident ever occurred as to which suggestions might not afterwards be made by which it might have been prevented. The plaintiff, if he had discovered any imperfection or insufficiency, had not advised the defendant; the latter does not appear to have been present while the plaintiff was engaged at his work, except upon the first day. “ There is nothing legally wrong,” says Bramhall, B. in Dynen v Leach, (26 Law Jour. Exch. 221,) “in the use by an employer of works or machinery, more or less dangerous to his workmen, or less safe than others that might be adopted. It may be inhuman for an employer to carry on his works so as to expose his workmen to the peril of their lives ; but it does not create a right of action for an injury which it may occasion, where the workman has" known all the facts and is as well acquainted as the master with the machinery, and voluntarily uses it.” In Williams v. Clough, (3 Hurl. & Nor. Rep. 258,) the same learned judge said: “ I abide by the opinion I expressed in the case referred to, (just quoted,) that a master cannot be held liable for an accident to his servant while using machinery in his employment, simply because the master knows that such machinery is unsafe, if the servant has the same means of knowledge as the master.” It was held in Assop v. Yates, (2 Hur. & Nor. R. 767,) “that the plaintiff could not recover for injuries, because after he had complained of the ’ and knowing all the circumstances, he voluntarily continued at work.”

The cases of Griffiths v. Gidlow, (3 Hur. & Nor. 648,) and Scrip v. The Eastern Counties Bailway Company, post, in principle, are singularly like the case under consideration. In the first there was evidence that the hook by which the barrel was attached which drew it up was not safe ; that it ought to have been a spring hook, which, it was alleged, would have prevented the misfortune which led to the accident. “ The answer to this (says Watson B. p. 655,) seems to us to be that the plaintiff himself knew the hook, and worked with it himself, possibly attached it to the tub or barrel, which afterwards fell upon him, and seems never to have made any observations or complaint in respect to it. We think that a servant so acting cannot maintain an action against an employer. He himself was contributory to the injury, and as it was stated by Lord Cranworth in' the case, in the house of lords, (Patterson v. Wallace, 1 McQueen, 748,) it is essential for the plaintiff or pursuer to establish that the injury arose from no rashness of his own.”

In Skipp v. The Eastern Counties Railway Co., (23 Law Jour. Rep. 23,) the plaintiff was a railway guard on defendants’ line. His duties were to attach goods carriages to the engine, and dispatch them to a particular station. He was occasionally assisted 'by a porter, On the 5th of July, 1852, it was necessary to shift the carriages from one line to another, and within a limited time, in order to prevent a collision with a down passenger train, which would shortly be due. While he was in the performance of this work, and for the want, as he said, of an additional person to assist him, the engine started, and he was thrown on the rails, and his arm was ■ crushed, and had to be amputated. He had been three months in the service of the company. He sued the company for damages, alleging that it was the duty of defendants to take all due precautions to prevent unnecessary danger, and that, in consequence of their neglecting to assign some one to assist him in the present instance, he had met with the accident. The Court of Exchequer held that the company was not liable.

If there was danger, and great precaution was necessary, the plaintiff in the present action being the sole operator, might have left the employ of the defendant, or omitted to turn the steam into the barrel, or have turned off the steam when he found the water' he had put into the barrel, by contact with the steam, was, as he testified, “ boiling like, mad.” Again, the accident can be attributed to human fallibility, in that the plaintiff hammered the “plug” down into the barrel so tight that even the alleged extraordinary pressure of steam emitted into the barrel for five minutes failed to send the plug out, and the barrel gave way. The consequence of his voluntary act, under such circumstances, cannot be visited against the defendant, however distressing the calamity which befell him, permanently disabling him from pursuing many of the occupations of life.

We might, with great propriety, have rested our disposition of this case upon the reasons assigned by the learned judge upon dismissing the complaint, and the case there cited, (Wright v. The N. Y. Central R. R. Co.; 25 N. Y. Rep. 566,) but in justice to the learned counsel who so ably argued the exceptions, we have carefully examined all the authorities cited by them, as well as some others to which we have alluded.

The complaint was properly dismissed ; the exception must he overruled) and judgment be entered for the defendant.  