
    Leonard J. Healy, an Infant, by Thomas H. Dowd, as Guardian ad Litem, Respondent, v. Buffalo, Rochester and Pittsburgh Railway Company, Appellant.
    Fourth Department,
    March 7, 1906.
    Negligence — injury to eye of fireman by explosion of water gauge failure to show negligence of defendant.
    The plaintiif, a fireman, was struck in the eye by a splinter of glass thrown by the explosion of the water gauge of a switch1 engine on which he w:as working. Two items of negligence were charged, first, that the engine should have been equipped with a better and safer Water-gauge guard, and, second, that the-gauge had not been properly inspected. ,
    
      Held, that as ,the proof conclusively showed that the, kind of gauge guard ■ used was' adopted by practically all the railroad corporations in thq country, the defendant was not chargeable with negligence in its use,, although there were other styles .of guard in use claimed to he safer. ■ A master is not required to usé the best appliances known, but only such as are reasonably safe, and in selecting the kind used he may rely on the judgment of others engaged-in the same business.
    
      Held, further, that, although there was evidence tending to show that a-portion of the glass, gauge; which broke ‘was worn thiñ, and. that there were certain hair lines thereon that an inspection would have disclosed, it'-was the- duty of the engineer — plaintiff’s felloT-servant — to make such" inspection or to report the defect to the defendant, which, in the-absence of notice, was not liable. • An official inspector is not required to inspect each minor detail of an engine each time it is used. - ■
    Appeal by the defendant, the Buffalo,, Rochester and Pittsburgh Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the' clerk of the counity of Cattaraugus on the 13th day of May,. 1905,- upon the verdict of" a jury for and .also from- an order entered in said clerk’s office on the 16th day of May, 1905j denying the defendant’s motion for a new trial made upon the minutes. '
    The action was commenced on the 17th day of January, 1905, to recover damage's for injuries sustained by the plaintiff, alleged to have been caused solely through the negligence of the defendant.
    
      James S. Havens, for the appellant.
    
      Thomas H. Dowd, for the respondent.
   McLennan, P. J.:

About eight o’clock p. m. on the 18th day of September, 1904, while the plaintiff was employed as fireman on one of defendant’s switch engines being operated in its yard at East, Salamanca, H. Y., the water glass attached' to such engine exploded in such manner that a piece of the broken glass was forced through the water-gauge guard, struck the plaintiff in the eye and caused the loss of its sight. To recover the damages resulting from such injury this action is brought.

At the time of the accident the plaintiff was twenty years of age, had been in defendant’s employ continuously for about three years. First, for about a year, he was engaged in coaling engines at Ash-ford, H. Y., a junction point on defendant’s road. After that, for about two years, he was employed hs fireman upon engines running regularly between that point and Bochestér, H- Y., or Gainesville, Penh. He then went to Salamanca- to take the position of “ hostler,” and that was his regular employment at the time of the accident and for about three weeks previous. “The duty of a hostler is to take an engine when it is brought in out of service and keep it until it goes out again; get it ready to run on the road. After the hostler takes charge it is run over the pit, and then there is the engine inspector that inspects every engine that goes over the pit thoroughly.”

After going to Salamanca, when the plaintiff did not have work to do as hostler, he acted as fireman upon the yard engines, as occasion required, and was so employed on engine Ho. 156 ivhen he received the injuries complained of. Within a few minutes after assuming the duties of fireman on such engine, while looking at the water gauge, as it was his duty to do, the explosion occurred with, the result above stated.

The evidence indicates that the plaintiff was a bright, active, intelligent young man, fully understood the duties of a fireman, and at least, in a general way, was familiar with the methods adopted by the defendant for the conduct of its business in the yard in question.

It is urged on behalf of the respondent that the evidence tends to establish that the defendant was guilty of negligence upon two grounds, and so as to justify the verdict rendered by the jury. Hirst, because it had not equipped the engine in question with a * safer or better style or pattern of water-gauge guard, and, second, because it failed to properly inspect the water glass which exploded, it being claimed that a reasonable inspection would have disclosed that it was so defective as to render its use unsafe. Practically those were the only questions involving the defendant’s negligence submitted to the jury, and it is not claimed that any other could be predicated upon the evidence.

The jury must have determined one or both of such propositions favorably to the plaintiff; therefore, their verdict. If the evidence did not warrant such conclusion as to both, the judgment and order appealed from must be reversed.

The evidence conclusively establishes that the kind or pattern of water-gauge guard which inclosed the tube or water glass which exploded was in general use; had been adopted • by practically all the railroad corporations in the country. It was the kind used by the Hew York Central Railroad Company and other equally important and well-known railroad corporations. 'The Baldwin Locomotive Works, which manufactures practically fifty percent of the locomotive engines used in the United States, equips its engines with the same style or pattern of water-gauge guard.

The evidence, however, tended, to show that there were other kinds of water-gauge guards also extensively used, which were safer, and that the defendant had about one-half of its engines equipped with such other alleged safer guards.

It is the settled law in this State that an employer does not owe to his - employee the legal duty of furnishing the best-known appliances- in the conduct of his business in order to protect such employee against injury. He is only required to furnish such as ■ are reasonably safe, and in selecting one of several appliances devised for doing a particular Work, and in determining which is the safer, he may rely upon the judgment of others engaged in the same business, and if the appliance- selected by him is in general use and has been generally adopted, he is not liable to an employee who may be injured, because of the use of the appliance so selected, notwithstanding it may appear that another kind or pattern of such appliance, also in use. was safer and less liable to injure an employee operating or in charge of the same. (Stringham v. Hilton, 111 N. Y. 188; Sisco v. L. & H. R. R. Co., 145 id. 296; Coppins v. N. Y. C. & H. R. R. R. Co., 43 Hun, 26; Frace v. N. Y., L. E. & W. R. R. Co., 143 N. Y. 182; Flinn v. N. Y. C. & H. R. R. R. Co., 142 id. 11; Harley v. B. C. M. Co., Id. 31; Leary v. Lehigh Valley R. R. Co., 76 Hun, 575.)

In view of the evidence bearing upon this proposition and considering the authorities referred to, it must be held as matter of law that the defendant was not guilty of actionable negligence because the engine upon which the plaintiff was employed as fireman was equipped with the water-gauge guard in question. As we have seen, it was such a guard as was in general use and had been adopted by practically all great railroad -corporations of the country as well as by the largest manufacturer of locomotive engines, and, therefore, we think the defendant was not chargeable with negligence for having used such appliance, notwithstanding there were others which in the opinion of experts were safer and the use of 'which was less liable to result in injury to an employee.

While the conclusion thus reached must result in a reversal of the judgment, because the verdict of the jury may have been based solely upon such alleged ground of negligence, we deem it proper t’o consider the other proposition imputing negligence to the defendant, which was submitted to the jury by' the learned trial court.

A water gauge such as is used upon a locomotive engine is so familiar to all it hardly need be described. It is located in the cab of the engine where it can readily be seen by the engineer and fireman. Its purpose is to inform them at a glance of the amount of water there is in the boiler, and is, therefore, almost constantly observed by one or both of them. It consists of a small glass tube, connected with the boiler in such manner that the amount of water in the boiler is indicated in, the tube, and so that steam may be forced 'through it for the purpose of removing any discoloration or sediment on the inside which would tend to prevent the water line from being distinctly seen, or would prevent the. water from readily flowing into it. The glass' tube which exploded had been put in place about two weeks before the accident. It was then new and of the very best quality made. The uncontradicted evidence tends to show that such tubes, although perfect, very often break when first used and ’without any known cause ; others with the same .use will last for many months.; 'that their life is practically - as uncertain as that, of a lamp chimney; that although apparently perfect, they may break almost instantly when first-used, while others, whose, apparent condition is not as good may last for a long time. There is some evidence tendingito show that from an examination of small pieces of the tube in question it. was discovered that it had been worn thin upon one side and that, there were, certain hair lines which would have disclosed, if proper inspection' had been made, that-such tube was practically worn out and that, its'longer use would be unsafe. We think upon the evidence it cannot be said, that the defendant owed the duty to the plaintiff of having, such. . water glass inspected -in such manner as to have disclosed its defects, if they existed, by any person other- than the engineer* and if such-failure to inspect wás the neglect of the engineer clearly the plaintiff cannot recover because they sustained to each other the relation of coemployees.

It would be unreasonable to hold that every time an engine was run over, the ashpit the engine inspector was required to' examine and see that every part of the engine was in perfect repair; to see to it that the handle of the lever just released by the'engineer' was not cracked; that some, valve or stopcock immediately under his . control was not loose, or that some other defect within his imme-. ■diate observation did not exist. If such an inspection was required . it is clear that it would have occupied days instead- of minutes, the. length of time such engines usually stood over the pit. Eor is there force in the suggestion that such engine should have been sent to the repair shop for such an examination or for repairs when there was nothing to indicate to the company that the sanie was needed. Bo defect had been reported by the "engineer and, therefore, there was no reason to suspect that an appliance which was constantly under his obseryation was defective, when by the rules of the company it was made his duty to report any defect discovered by him. We think the duty of the engineer upon the engine in question is concisely stated in the head note in Manning v. Genesee River Steamboat Co. (66 App. Div. 314), recently decided by this court:' “ Where a water gauge attached to a steamboat, boiler is fitted with a glass which is liable to break at any time and The operation of replacing the broken glass can be readily performed by turning oS the valves at either end of the gauge and thus shutting off the water and then taking out the defective glass and putting in a new one from a supply kept on hand, the duty of replacing the defective glass is incumbent upon the engineer in his character as a servant.”

■ In the case at bar, while there is evidence tending to show that it was not the duty of the engineer operating a switch engine in the yard to remove a defective water glass, it is established beyond dispute that it was his duty to report any defect in such appliance which he discovered. No defect in the water glass in question was reported by him, and we think actionable negligence cannot be predicated upon the fact that the defendant failed to discover such defect in the absence of a report or information by the engineer to that effect.

We conclude that the evidence wholly failed to establish that the defendant was guilty of actionable negligence because it failed to make any other inspection than it did in order to discover the defect in the water glass which exploded, even if a discoverable defect existed.

It follows that the judgment and order appealed from should be reversed and a new trial ordered, with costs to appellant to abide event; upon questions of law only, the facts having been examined and no error found therein.

Spbihg, Williams and Nash, JJ., concurred; Hiscock, J., not voting, he having, ceased to be a member of the court since the argument of the appeal herein.

Judgment and order reversed and new trial ordered, with costs to the appellant to abide the event, upon questions of law only, the facts having been examined and no error found therein.  