
    Maggie Piehl, as Administratrix, etc., of John Piehl, Jr., Deceased, Respondent, v. The Albany Railway, Appellant.
    
      Negligence — bursting of a fly wheel of an engine—an engineer, using his best judgment in a moment of peril, cutting off an electric current from the generator of the engine before he shut off the steam from the engine itself.
    
    Evidence that an engineer, employed in a power house in which were two engines working in multiple and used to generate electricity, upon noticing a violent ■ sparking at the generator connected with one of the engines, and ascertaining that that engine Was carrying much the heavier load, instead of first shutting off steam to stop the operation of the engine, broke the current instantly in order to stop the trouble at the generator—in the belief that the automatic governor of the engine would prevent it from running dangerously fast until he should have time to reach the throttle which was distant only twenty-four feet — and that he then immediately shut off steam from this engine, and, while passing to the second engine, the fly wheel of the first burst from centrifugal force, is hot, even upon the assumption that the engineer made a mistake in breaking the circuit before he shut off steam, sufficient proof of negligence to, charge his employer with responsibility for the death of a person struck by one of the fragments of the wheel, it appearing that the engineer acted promptly in the premises and used his best judgment.
    Appeal by the defendant, The Albany Railway, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 19th day of November, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of November, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    
      Lewis E. Carr and Edward W. Douglas, for the appellant.
    
      Mark Cohn and Daniel Adler, for the respondent.
   Landok, J.:

. On November 12, 1895, a fly wheel, twenty feet in diameter, weighing 50,000 pounds,- forming part of one of the steam engines operated by the defendant' in its power house upon the east side of South Pearl street, in the city of Albany, burst, and some of the fragments, flying through the west side of the power house across the street, and into a saloon upon the west* side of the street, struck and killed John Piehl, the plaintiff’s intestate. The plaintiff brought this action under the statute to recover- damages, charging that Piehl’s death was caused by the negligence of-the defendant. Upon, the trial the plaintiff sought to prove defects in the defendant’s machinery. and appliances; also, the inadequacy of its force of operatives; but, upon the close of the testimony, the learned trial court held that the evidence was not sufficient to raise any question in these respects, and that the only evidence raising any question of negligence upon the part of the defendant was in respect to the action and competency of the engineer in charge of the power house at the time of the explosion and immediately preceding it. We are not called upon to review the ruling of the learned trial judge in thus narrowing the range of the questions submitted to the jury. The plaintiff cannot now sustain the verdict upon the ground taken from her by the trial judge. (Wangler v. Swift, 90 N. Y. 38.) We must assume that the explosion, in view of this condition of things, did not raise a presumption of negligence upon the part of the-defendant. (Cosulich v. The Standard Oil Company, 122 N. Y. 118; Reiss v. N. Y. Steam Company, 128 id. 103.) The •burden, therefore, rested upon the plaintiff to show some act of negligence in the operation of this suitably equipped plant.

The main question for us to consider is whether, the evidence-touching the action of the engineer under the circumstances disclosed, or his competency, presented a case justifying the submission to the-jury of the question whether the explosion of the fly wheel was caused by the negligence of the defendant.

The defendant operated several lines of street cars by means of electricity generated in this power house and distributed from it. There were five steam engines in the engine room of the power house, three of which were in operation at the time of the explosion. Two of the three were the Cooper, Corliss & Co. engines, each of 500 normal horse power, and are designated in the record as Nos. 1 and 2, and were exactly alike. The fly wheel of No. 1 burst. The third engine was of 250 horse power. These engines consisted of a cylinder for the piston, a crank turned by the piston, a shaft to which the crank was attached which drove the fly wheel. A belt from the fly wheel of No. 1 to the pulley of a generator of electricity of 500 horse power standing near, drove the latter with great rapidity and thus generated the electricity which was taken from the generator to the commutator, and from thence passed upon trolley wires over the railroad tracks. The steain was fed to the cylinder from the boilers in an adjoining boiler room from an overhead pipe.

At three o’clock in the afternoon upon which the explosion occurred, John Herlihy, one of the three assistant engineers employed by the defendant, took charge of the power house, succeeding William Pari’, who had been in charge the eight previous hours. Herlihy made an examination and found everything in apparent good order and working smoothly. At three-forty o’clock he was engaged in trimming an electric lamp which was suspended from above, and was raised and lowered by a cord. This lamp was between engines 1 and 2, and was about twelve feet from the easterly side of the room. While thus engaged, his attention was arrested by the violent sparking at the generator of engine No. 1. He instantly went to the generator, about forty feet distant, to ascertain the cause. He did not discover it. He then went to the switch board, about twelve feet further on in a diagonal direction, and looked at the ammeters of engines Nos. 1 and 2 — that is, the measurers of the current or amount of load that each generator produces, which were attached to the switch board — and noticed a great disparity in what the case terms the amperage,” or load of electricity which each generator was making, and which each engine was carrying. The ammeters indicated between 700 and 800 amperes upon engine No. 1,. and between 200 and 300 amperes, upon No. 2.' When-he went, upon duty lie’had noticed that each engine or generator was carrying about 400 amperes. .Engines Nos. 1 and - 2 worked in multiple, that is, their aggregate product of electricity was blended so as to pass to its work in the same currents. There were twometliods-of equalizing the two amperages, or loads of electricity. One was by means of a rheostat,, which was at the- hand of the engineer,.: ánd was gradual in its operation, that is, four or five minutes in completing its work; the other way, speedy, almost instantaneous. That -was to break the circuit and then restore it, an operation performed by pulling -.the little handle of the circuit breaker one way, waiting a second or two and then pulling the handle the other way, The engineer pulled the handle one way and broke the circuit: Now, if the engines had both been working properly, the evidence tends to show, and the trial court so held, that the act of the engineer would hav$ been proper; but he testified upon his direct examination, the plaintiff having called him as a' witness, that, as he was at the switch hoard, I looked back at the -engine, and I noticed it speeding up, and I pulled that circuit- breaker,” and then immediately went -to- the throttle of engine’No. l and shut off the steam, and then wa's passing toward No. 2 to shut the steam off there, when the explosion-took-place. He afterwards characterized this “ speeding up” ás “racing” and “running away.”

The theory of the plaintiff was. that, if the engineer, before he pulled the circuit breaker, saw that his engine was “ running away,” it was improper for- him first to pull the circuif breaker and shut off -steam afterwards; that lie should have shut off the steam first, since break the circuit was to lighten the load the engine was carrying, and thus to increase the speed of its fly wheel and precipitate its destruction. ' .

Upon his cross-examination, the engineer .said that he. did not notice the engine speeding up until after he had pulled the- circuit breaker, and' although he was rigorously. .examined by . counsel upon both sides touching*''the matter, -he .adhered to the latter statement.

■ ’ It may well be that, when the witness testified in the words above quoted from his direct examination, he did not give attention to the order in which his pulling the circuit breaker stood to his observation of the speeding up of the engine, and that his final statement, made when his attention was directed to the order of these two acts, should have been taken as his corrected testimony. But the learned trial judge, who saw and heard the witness, did not feel at liberty to adopt that view, and he left it as a question for the jury to determine which took place first.

The question of fact next presented to the jury was, if the engineer saw that the engine was running away before he pulled the circuit breaker, was this a mistake, and did it cause the explosion ? Expert witnesses upon the side of the plaintiff testified that it was a mistake. Expert witnesses upon the part of the defendant testified that it was not. We have already indicated the reason given by the expert witnesses for the plaintiff, namely, that lightening the load the engine was carrying would remove the obstacle to its speed. The reasons given by the expert witnesses for the defense were that the violent sparking at the generator indicated that something was wrong with it; that the inspection of the ammeters was the next thing to do ; that such inspection disclosing a great disparity in the loads of engines Nos. 1 and 2, that disparity should be arrested by breaking the circuit, and then seizing the throttle of the engine and shutting off steam, all of which would be the work of a few seconds of time; that if, while about to pull the circuit breaker, the engineer discovered that the engine was running away, he, nevertheless, did right in pulling the circuit breaker—the work of an instant — so as to put a stop to the trouble at the generator; that the engine had an automatic governor so made and adjusted as to prevent the engine from running beyond the limit of safety, if it was in good order, and, since it had never been known to fail in its duty, the engineer could still trust to it for the short interval between pulling the circuit breaker and seizing the throttle of the engine, the distance from the switch board to the throttle not exceeding twenty-four feet.

Assuming that the engineer did see the engine running away, and that he made a mistake in pulling the circuit breaker before he seized the throttle, the next and graver question submitted by the court to the jury was whether this act of the engineer was either attributable to his negligence or attributable to his incompetency. We think that it was error to submit either, question to the jury. The evidence shows that the engineer acted with the utmost promptness, and strictly in accordance with his best judgment upon the facts as they then appeared to him.. He is not to be judged in' the light of facts then unknown and since discovered, unless it is shown that, but for his negligence or incompetency, he would have known them. (Burke v. Witherbee, 98 N. Y. 562, 568.) But if he should be subjected to this unjust test he should' not be condemned, for nothing was disclosed upon the trial that threw any new light upon the cause of the explosion. The fly 'wheel was running too fast, and, therefore, to employ the terms of the experts, its centrifugal force overcame its cohesive power or tensile strength, and it burst. The engineer rightly judged that it was best to shut off steam and stop the engine, and not to trust to the usual automatic action of the governor. If, as is now conjectured, from the' non-action of the governor and the inability to find fault with anything else, the governor was out of. order, the engineer was'prompt to act'upon, that coiljecture, and he hastened' to the throttle and shut off steam. It is.not urged that he was slack in discovering, or in acting tip on' the discovery. The breaking of the circuit, as the learned judge charged, did not appreciably delay the engineer in going to the throttle. The' evidence is insufficient to convict him of negligence by omission.

Nor does the evidence support the finding of Herlihy’s in competency. His duties were not to construct or install these steam engines and" electrical appliances, but to ■ operate them. He was serving under the consulting engineer of the defendant, who, though not present at the time of the explosion, daily visited the works. No question is made as to the competency of the consulting engineer, and his testimony is to the effect that Herlihy acted properly upon this occasion, and the testimony of the electrical superintendent of the General Electric Company, which manufactured the electrical machines used in the power house, is to the same effect. The experience of the latter Witness practically covered the entire .period, in which electricity had been used as the motive power for street railroads: Herlihy entered' the employ of the defendant in April, 1892, as an oiler of the machinery in the power house. He had had some previous experience, not much, in operating'steam engines. After three years’ service as oiler he was employed as engineer, and had served as such eight months, when this explosion occurred. No fault had ever been found in respect to his capacity or carefulness.

The learned counsel for the plaintiff examined him at some length with reference to his scientific attainments. It is conceivable that a person thus examined may make such answers as to convince the lay mind, unassisted by professional opinion, of his incompetency. But we do not perceive that any of his answers disclosed his incompetency for the service in which he was employed, or afforded anything more than a pretense for denouncing him. He is accused of but one wrong act, namely, pulling the circuit breaker before shutting off steam. The most that can be said of this, in view of the divided opinion of competent experts, is that it may have been an error in judgment, and if it was, and although committed in an emergency demanding prompt action, and admitting only a second or two of time for reflection, it was such an act as experts of high rank, upon reflection, still approve. While we cannot be certain that Herliky’s action ought to be commended, it is clear that an unbiased mind cannot condemn it as evidence of incompetency. It is enough to say that the plaintiff has not maintained the burden of proof resting upon her in this respect.

To convert into evidence of negligence a mistaken act of omission or commission, based upon the actor’s best judgment of the needs of the situation, it is necessary also to show that the error in judgment is traceable to negligence or incompetency. (Wynn v. Central Park, etc., R. R. Co., 133 N. Y. 575; Chrystal v. Troy & B. R. R. Co., 105 id. 164.)

It is quite clear, we think, in this case, that the weight of experience is upon the side of the engineer and the weight of theory against him. We need not say that it is easier to procure theories than experience. In such a case to condemn his act because it was not successful, and then to condemn him because we have condemned his act, is to proceed upon speculation, or at least upon evidence which no more tends to support the verdict , than to subvert it. The burden of proof is not thus to be maintained. (Baulec v. N. Y. & Harlem R. R. Co., 59 N. Y. 356; Hayes v. Forty-second St. R. R. Co., 97 id. 259; Lmklumf v. Lombard, 137 id. 417.)

Without discussing other questions urged by the appellant, we think, for the reasons above-stated, the case was improperly submitted 'to the jury. ' ■

Jüdgment and order reversed, new trial granted, costs to abide the event. • . ■ ' ■

All concurred, except Herrick, J., not sitting.

Judgment And order reversed and a new trial granted, costs-to abide the event.  