
    Jane E. Oliver, Administratrix, App’lt, v. Whitney Marble Company, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 5, 1886.)
    
    NsG-LiaENOE—Master and servant—Responsibility oe master.
    The defendant bought steam boilers which were guaranteed. Defects-being' discovered the vendor sent plaintiff’s intestate with others of vendor’s-employees to repair and test them. The defendant’s engineer, it does not appear at whose request, put fire under the boilers after the repairs were made for the purpose of testing them, when one exploded killing the intestate. The defendant did not know of any latent defects. Held, that defendant was not liable in a suit for damages. In the absence of proof on the part of plaintiff, it must be presumed that defendant’s servant either volunteered to aid vendor’s servants or was requested by them to do so, in either case he was not the servant of defendant in what he did, and defendant was not responsible for his acts.
    Appeal from a judgment of the supreme court, general term, fourth department, affirming judgment of Jefferson circuit, entered on an order of non-suit.
    
      E. C. Emerson, for app’lt; John Lansing, for resp’t.
    
      
       Affirming 86 Hun, 640, mem.
      
    
   Earl, J.

This action was brought to recover damages for the death of Joseph Oliver, caused by the explosion of a steam boiler owned by the defendant at Gouverneur, in this state. The material facts are as follows: The defendant bought two boilers of the Watertown Steam Engine Company, in September or October, 1883. They were placed side by side to furnish power for the same machinery, and were used until May 3, 1884, when the southerly boiler exploded. The vendor guaranteed that the boilers should bo good, constructed in first-class manner, and of good material. Shortly before the explosion, the defendant discovered that there were defects in the boilers, and notified the vendor thereof, and requested it to repair them. In compliance with this request, and to fulfill its contract and guaranty with the defendant, the vendors sent from Watertown one Hislop, the foreman of its boiler shop, and one Dashno, a boiler maker, to make the necessary repairs upon the boilers. They examined them, and found that they leaked steam, and needed calking, and some new rivets and bolts. Hislop told Dashno what to do, and that he should have the boilers fired up, and steam on, and examine them thoroughly, and not leave them until everything was perfect and right. He then returned to Watertown, and had some bolts made, and sent Oliver, a boiler maker, who had been in the employ of the vendor for many years, with the bolts, to Gouverneur, with instructions to aid Dashno in making the repairs, and told him “to help get the rivets driven, and see that everything was all right before he came home and left the boilers; to fire the boilers up, and test them before he came home, and see that everything was all right.”

Dashno and Oliver went to work upon the boilers, and, when they had substantially finished, one Newcombe, who was the defendant’s engineer, and who was killed by the explosion, put fire under the boilers. It does not appear at whose request he did this. It must be presumed that he did it at the request of the boiler makers, for the purpose of mating the tests which they had been instructed to make. The only witness who lived to tell what took place, immediately before the explosion, detailed a conversation which occurred between Newcombe and Dashno, who was, at the time, upon the south boiler, as follows: “Dashno asked Newcombe how much steam was on the north boiler. Newcombe said, ‘Ninety-five pounds.’ Dashno then said, ‘How much on this ? ’ [the south boiler] Newcombe said, ‘ Twenty-five pounds.’ Dashno then said, ‘Open the door in the further [north] boiler.’ Newcombe said, ‘Let the steam on it and he would risk it.’ Dashno then stepped up towards the smoke-stack. He had hardly made his move when the explosion came. When Newcombe said, ‘Let the steam on,’ Dashno made some objection. He did not want to; and Newcombe told him he would risk it; to let the steam on. The explosion then took place.”

The plaintiff claims that Newcombe was both unskillful and careless, anddhat the defendant is responsible for his acts. There was no proof whatever that the defendant had any notice that he was unskillful, or that he was in fact unskillful. There is no proof whatever, or just inference, that he was then acting for the defendant. The vendor had undertaken on its own account to make these repairs, and then to test the boilers to see if the repairs were adequate; and it must be presumed, in the absence of proof on the part of the plaintiff, who has the burden of establishing his case, that Newcombe either volunteered to aid the boiler-makers, or was requested by them to aid in making the tests. In either event he was not the servant of the defendant in what he did, and it did not become responsible for his acts. '

But we should reach the same conclusion, on this branch of the case, if we assumed that Newcombe was the servant of the defendant in what he did, as there is no sufficient evidence and no just inference of any carelessness on his part. The proof does not show with any certainty what caused the explosion. No experts were called upon the •subject. It was probably caused by letting steam or cold water into the boiler. But, even if it was thus caused, it does not follow that Newcombe was careless. It does not appear that there was anything to indicate danger to him in what he did. The water-gouges indicated a sufficiency of water in the boilers, and there is no proof that they were out of order, or that he ought to have known that they were out of order. For aught that appears, he believed and had the right to believe, that his acts were perfectly proper and safe. It is not sufficient now, after the accident, to show that they were in fact improper, and caused the explosion. But the plaintiff should have shown that he knew, had reason to know, or ought to have known, that they were improper and dangerous. This was not shown; and carelessness which put human life in peril should not be presumed, or found upon a mere scintilla of evidence.

But the plaintiff also claims that the boiler which exploded was in an improper and unsafe condition, and that on account thereof the defendant is liable for the accident. It did not owe the same duty to Oliver which would have been due to an employee into whose hands the boiler was ■ placed for use. To such an employee it would have owed the duty of reasonable care and diligence to see to it that the boiler was in a safe and proper condition for use. Oliver was there to repair this boiler, and if the accident occurred from any of the defects which the vendor, his employer, was bound to repair, no responsibility was thereby cast upon the defendant. Oliver assumed all the risks incident to such defects. If there had been any concealed dangerous defects known to the defendant,.it would have been bound to notify the boiler-makers of them. But it did not guarantee that the boiler was safe. It does not appear that any one had knowledge of any concealed defects in the boiler making it dangerous. It was new—had been used but a few months, and had been cleaned every two weeks. There is no evidence that it ought to have been examined or cleaned more frequently. There is no evidence of any carelessness on the part of the defendant in reference to the condition of the boiler, or that it was unsafe when placed in the hands of the boiler-makers for repairs. The accident might have been due entirely to the act of Newcombe, and it certainly was not shown that it was due to any defect in the" boiler. The jury might have guessed that there was a defect, but there was not sufficient evidence of it to form the basis of a verdict.

We are therefore of opinion that the nonsuit was proper, and that the judgment should be affirmed, with costs.

All concur, except Miller, J., absent.  