
    Margaret McMahon, as Sole Administratrix, etc., of Henry P. McMahon, Deceased, Appellant, v. Lehigh Valley Railroad Company, Respondent.
    Third Department,
    May 4, 1910.
    Railroad. — negligence — boiler explosion — cause — question for jury — concurring negligence of engineer —pleading.
    Where the evidence in an action to recover for the death of plaintiff’s intestate, a brakeman, who was killed by the explosion of a locomotive boiler, tends to show that parts of the firebox were defective; that such defects caused the explosion, and that defendant had neglected to subject the engine to customary tests, the negligence of the engineer in permitting the steam pressure to become excessive does not exonerate the defendant, if by the use of such tests, the defective condition of the boiler could have been ascertained. Evidence examined, and held, to raise questions for the jury as to whether the engine was defective and, if so, whether the accident was caused by the defect, and whether the engine was properly inspected and tested.
    Evidence of insufficient inspection may be given under an allegation that the defendant was negligent in providing an unsafe engine.
    Appeal by the plaintiff, Margaret McMahon, as sole administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Tioga on the 14th day of November, 1908, upon the dismissal of the complaint by direction of the court after a trial at the Tioga Trial Term.
    
      
      Charles O. Annabel [James 0. Sebrmg of counsel], - for the appellant.
    
      Diven <& Dwen [Alexander S. Diven of counsel], for the respondent.
   Cochrane, J.:

This is an action to recover damages for negligently causing the death of the plaintiff’s intestate, Ilenry P. McMahon. On the 23d day of December, 1905, he was employed as head brakeman on a freight train of the defendant running southerly from Geneva to Sayre in the State of Pennsylvania. When between Spencer and Van Etten, in this State, either the crown sheet or rear flue sheet adjacent to the firebox in the engine collapsed owing to the extreme pressure of steam thereon, allowing the steam and water to escape into the firebox, and McMahon, who was standing on the tender attached to the engine, received injuries resulting in his death. The crown sheet constitutes the roof or upper part of the firebox, which is twelve or fourteen feet long, and the rear flue sheet constitutes the front end of the firebox.

The complaint alleges that the defendant negligently provided an unsafe engine and that the same was out of repair, defective and dangerous. It also alleges negligence in keeping an inadequate supply of water in the boiler. This latter negligence, if it existed, was that of a fellow-servant for which there could be no recovery for an accident occurring at the time in question. The defendant’s theory of the explosion is that the water which should surround the firebox and cover the crown sheet had been negfigently permitted by the engineer to get below the crown shéet and that this was the cause of the explosion. Such theory was controverted by the engineer and fireman who both testified in effect that the boiler was full of water. An expert witness also testified that an explosion could not be caused in that manner.

Plaintiff produced two witnesses, Bogart and Van Horn, blacksmiths by occupation, who resided in the immediate vicinity of the accident and examined the engine directly after the explosion. Prom their testimony it appears that the crown sheet was cracked and broken by the explosion; that the broken edges showed the metal to be brittle, rotten and dark colored as the result of burning or excessive heat; that the crown sheet was thicker -at the sides and thinner towards the center where most exposed to the heat in the firebox ; that the thickest point was about half an inch in thickness, and the thinnest point from one-fourth to three-eighths of an inch. True, these witnesses were unfamiliar with the mechanism and names of the different parts of a locomotive engine, but there, is no doubt from their evidence that they were describing the roof or upper covering of the firebox, and there can be no doubt that from their experience they were fully qualified to testify as to the condition and. nature of the metal, and that it had been Weakened and scaled off by exposure to extreme heat.

Plaintiff also produced as an expert' a witness by the name of Kennedy, who examined the engine at the time of the trial, nearly three years after the accident. He testified that the crown sheet was unbroken and in good condition, and that the rear fine sheet was fractured twelve or fourteen inches below the crown sheet. The duty of harmonizing or weighing inconsistencies in the testimony of the various witnesses rests not on the court, but on the jury, and"we are not at liberty to attempt to offset the testimony of Kennedy as to which sheet broke against the testimony of the other witnesses. Perhaps the engine was not in the same condition at the time of the trial as it was immediately after the explosion, nearly three years earlier. . Probably it is not very material whether it was the crown sheet or the flue sheet which was fractured. Perhaps it was both. If it was the flue sheet, Kerinedy testified in substance that it was thin and worn away by the corrosive action of scales due to repeated overheating.

Evidence was given as to the methods of inspection, and tests" to which an engine should be subjected. It appears that one of such methods is tapping the sheets with a hammer, which discloses the deterioration and variations in thickness. A boiler inspector in the employ of the defendant testified that he inspected this engine on December fourth, nineteen days before the accident, by tapping the ends of the stay bolts With a hammer, but he made no examination of the crown sheet or side sheets other than looking at them with the assistance of a lighted torch. He did not tap the sheets for the purpose of discovering any weakness or thinness therein. It was customary to inspect engines once every thirty days, but the witness in question had made no inspection of this engine except as stated, and no other witness was produced by the defendant who made a similar inspection.

It appears that another method of inspection or testing an engine is the hydrostatic test, which consists in forcing water into the boiler so as to increase the pressure more than the regular working pressure. This boiler in question was adjusted at 145 pounds working pressure. The testimony of Kennedy was to the effect that for such a boiler the hydrostatic test should be made at. 200 pounds pressure, and in this particular he was uncontradicted. It appears that the engine in question was subjected to this test about a year before the accident, but the pressure applied was only 165 instead of 200 pounds. The testimony of the engineer tends to show that immediately before the accident he discovered that the steam pressure had increased to 170 pounds owing to the failure of the safety valve to work properly. It may very well be, therefore, that if a proper hydrostatic test had been applied to this engine its weakness would have been disclosed. Evidently this test was designed to guard against such an unusual occurrence of extreme pressure as was manifested just prior to the accident. Even if it be assumed, as claimed by the defendant, that the engineer was negligent in permitting this excessive steam pressure of 170 pounds, his negligence will not exonerate the defendant if by the use of - ordir nary tests a weak or dangerous condition of the engine would have been exposed, and it negligently omitted to apply such tests or made them in a negligent manner. There is more or less vagueness in the testimony concerning the various tests to which locomotive engines are subjected. But the defendant in its practice recognized the propriety of a monthly inspection of its engines and also of the hydrostatic test, and I think under the evidence it was a fair question for the jury as to whether or not the defendant in a proper manner made such inspection and tests as it assumed to make.

The case of Hudson v. Rome, Watertown & Ogdensburg R. R. Co. (145 N. Y. 408) is distinguishable from this case. There was in that case no contradictory evidence as to the condition and appearance of the engine after the accident. There was no fracture of any of the sheets surrounding - the firebox, but the crown sheet was stretched and bent down so as to form an inverted arch ; it was clean'and presented a light color without evidence of soot or discoloration, showing that the overheating was simultaneous with the accident. ■ Well-known scientific facts were regarded as'conclusively demonstrating that the accident could no't have occurred when the crown sheet was cool and under water, notwithstanding the evidence of the engineer and hostler to the contrary. • The evidence in this case as to the condition and appearance of the sheets is conflicting and presented a question of fact as to whether or not the scorching • or burning of the sheets had taken place prior to the accident. ■

The complaint it is true does not in specific language allege that the defendant failed to properly inspect this engine. But it alleges negligence in providing an unsafe engine, and the failure to make a proper inspection is the evidence of such negligence. The mere fact that the engine may have been unsafe does not constitute negligence. But when in addition thereto it appears that the defendant by. proper inspection should have known that it was unsafe, the allegation of negligence, is. supported. The evidence of insufficient inspection was, therefore, secundum allegata.

While much immaterial .and confusing evidence was introduced tending to obscure the essential points in the case, I think sufficient may be gleaned from all the evidence to make it necessary for the jury to determine whether this engine was defective, and, if defective, whether the accident was due to such defect, and whether-the defendant had made the proper inspection and tests to apprise itself of such defect.

The judgment must be reversed and a "new trial granted, with costs to the appellant to abide the event.

AH concurred ; Kellogg, J., nqt sitting.

Judgment reversed and new trial .granted, with costs-to appellant to abide event.  