
    (70 Hun, 453.)
    RACINE v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, General Term, Third Department.
    July 8, 1893.)
    Negligence—Evidence—Defective Machinery.
    In an action against a railroad company to recover for the death of a fireman by the explosion of his engine, it appeared that, about a week before the accident, the water in the boiler .had been lowered so that the crown sheet was not covered. The engine was afterwards examined and tested to the maximum pressure of about 145 pounds, but no defect was discovered, and it was continued in use. The explosion occurred while the -engine was running without a train, under a pressure of 116 pounds. Held insufficient to go to the jury on the question of defendant’s negligence.
    Appeal from circuit court, St. Lawrence county.
    Action by Carrie A. Eacine, as • administratrix of Samuel L. Eacine, deceased, against the New York Central & Hudson River Railroad Company. From a judgment entered on an order dismissing the complaint, with costs, plaintiff appeals.
    Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM and HEBEICK, JJ.
    Chamberlain & Caldwell, (Worth Chamberlain, of counsel,) for appellant.
    Mullin, Griffin & Walker, (D. G. Griffin, of counsel,) for respondent.
   MAYHAM, P. J.

The plaintiff’s intestate was killed while in the employ of the defendant, by the explosion of a boiler on one of the defendant’s locomotive engines; and the only question raised on this appeal is whether the trial judge should have submitted to the jury as to whether or not the defendant was negligent in furnishing .an unsafe place for the plaintiff’s intestate to perform his work. The injury occurred by an explosion of the crown sheet of the boiler, and there was some evidence that about one week before the explosion, which caused the injury, the water in the boiler had been lowered so that the crown sheet was not covered, and that the engineer discovered that the plate appeared white, and the attention of the master mechanic was called to it, and after some examination-of the boiler by experienced engineers, and by a boiler maker, who discovered no evidence of injury or weakness to the boiler, she was kept at work. The evidence shows that the maximum capacity of the boiler to resist the pressure of steam was between 140 and 145 pounds before she would exhaust steam, or “pop off,” as the witness called it, automatically, by forcing open the safety valve on the engine, and the evidence shows that, frequently after the alleged burning of the crown plate, she carried her full amount of steam, and popped off regularly when the maximum pressure was reached. The evidence also disclosed that she was used from the time of the supposed burning of the plate to the time of the explosion in hauling freight trains over the road, and showed no signs of weakness or leaking, and that on the day of the accident she had hauled a freight train from Watertown to Sanford’s Comers, where she was transferred to a passenger train, which she hauled to Philadelphia, whence she started back without a train, to be again- attached to the freight which she had left, and while carrying but 110 pounds of steam, and running at the ' rate of 10 miles an hour, she exploded, and caused the injury complained of.

We think that, upon these facts, the plaintiff failed to establish affirmatively any negligence on the part of the defendant in not providing a reasonably safe place for the plaintiff’s intestate to work. The doctrine is doubtless well settled by authority that the defendant is bound, not only to furnish a 'reasonably safe place for its employes to work, but it must 'use reasonable care in- keeping such place free from unnecessary peril. Hawley v. Railroad Co., 82 N. Y. 370; Mehan v. Railroad Co., 73 N. Y. 585. But this rule does not go to the length of making the employer insurers against injury by the breaking of machinery, or the explosion of boilers, while used by an employe in the service of the employer, provided such machinery is apparently in a safe condition, and injury results from latent weakness or defect, unknown to the employer,- and which the exercise of ordinary care and skill by the employer would not enable him to detect or guard against; and, when an accident happens under such circumstances, it must be regarded as one of the risks incident to the employment, which, when no fault is chargeable to the employer, the employe assumes. The boiler in this case, after-the supposed burning of the crown plate, was subjected to the test of 145 pounds’ pressure, its maximum capacity, and resisted that pressure, and upon that test was put in service by the defendant-in hauling freight and passenger trains, under a pressure, as would seem from the evidence, of from 140 to 145 pounds of steam, and continued in such service for about one week after such supposed burning of the plate, to the time of the accident, without any evidence of weakness. It finally exploded, while carrying only 110 pounds of steam, and while running at a moderate rate of speed, alone, and without a train. We fail to see from the evidence either that the place furnished by the defendant for the intestate to work was unsafe, or that the defendant was guilty of negligence in suffering it to become unsafe while the intestate was employed by the defendant. We think, under the proof in this case, if it had been submitted to the jury, and a verdict had been rendered in favor of the plaintiff, it would have been the duty of the trial judge to have set it aside upon the minutes. In such a case it is the duty of the judge to nonsuit, and we think, therefore, that the nonsuit was properly granted in this case.

Judgment affirmed, with costs. All concur.  