
    Ella M. Goodhines, as Administratrix, etc., of Jacob C. Goodhines, Deceased, Respondent, v. Lewis S. Chase, Appellant.
    
      Negligence — death caused, by a boiler explosion—failm'G to prom the absence of contributory negligence — what must be proved in this respect.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, it appeared that the intestate while employed by-the defendant in firing a steam boiler was killed in consequence of an explosion of the blow-off appliance attached to the boiler; that the blow-off appliance was defective and that the defendant knew or should have known of such defect. No' evidence was given, however, tending to show that the accident actually resulted from such defect, and it appeared that it might have resulted from a variety of other causes, for no one of which the defendant would have been responsible. There were no eye-witnesses of the accident and no proof of what the intestate did or did not do in the premises.
    
      Held, that a judgment entered upon a verdict in favor of the plaintiff should be reversed on the ground that the plaintiff had failed to show that the intestate was free from contributory negligence;
    That in an action for negligence it is incumbent upon the plaintiff to show by a preponderance of evidence such facts and circumstances as will satisfy the minds of the j urors that the deceased exercised proper care and prudence and did not omit the precautions of a prudent man under the circumstances;
    That the law demands proof and not mere surmises.
    Spring and Williams, JJ., dissented.
    Appeal by the defendant, Lewis S. Chase, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 26th day of December, 1903, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s.office on the 14th day of December, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      The action was commenced on the 22d day of October, 1903, to recover the damages sustained by the widow and next of kin of' plaintiff’s intestate, on account of his death, which occurred on the-15th day of April, 1903, alleged to have been caused solely through the negligence of the defendant.
    
      Charles D. Thomas and J. D. Reed, for the appellant.
    
      H. C. Sholes, for the respondent.
   McLennan, P. J.:

At about six o’clock in the afternoon of the 15th day of April, 1903, plaintiff’s intestate, who at the time was in defendant’s employ, engaged in firing a boiler and running a sixty-horse power engine, sustained injuries from which he died about two hours later. He had. been so employed for about a year previous, was familiar with the machinery and the manner of its operation, and was competent to perform the duties of his employment. The evidence indicates that the injuries were occasioned by the explosion of the blow-off appliance, so called, attached to the boiler, which caused the parts to be thrown with great-violence and permitted steam to escape in great quantities. Many bones of the-body of the deceased were broken and he was badly scalded. The evidence also tends to show that the blow-off appliance was defective and that the defendant knew, or ought to have known, that fact, and is of a character to support the finding that defendant was guilty of negligence, but it fails to establish that such negligence was the cause of the accident, or to indicate even in the slightest degree that plaintiff’s intestate was free from contributory negligence. Therefore, the judgment and order appealed from must be reversed.

The defendant, for many years prior to the accident, had been engaged in operating a sawmill, gristmill, cheese-box and sash and blind factory at South Columbia, Herkimer county, ÍL Y., which was controlled and managed by his brother, Walter E. Chase, as-general manager. All the machinery in the different departments-was chiefly propelled by steam power, the engine and boiler being in a building separate from the mill, and in which the deceased was the only employee who had any duties to perform in the usual course of operation. The boiler, which, with its attachments, is the only part of the machinery involved in this action, was incased in a brick wall about a foot thick. Connected with it by means of a flange was a three-inch pipe extending from the boiler through the incasing wall, and made rigid in it. To the end of such pipe there was. screwed a globe-valve; in it was fastened a short nipple, to which in turn was attached a stop cock, and screwed into-it was an elbow,, from which a pipe extended perpendicularly to near the floor; at-its end was another elbow, and from it a pipe extended horizontally through the wall of the engine room. The purpose of such blow-off appliance was to enable the boiler to be cleaned of sediment and to freshen the water, and was used each day at about the time of shutting down the mill. The deceased had been given specific instructions by defendant’s superintendent as to how to manipulate such blow-off appliance. He was directed to first open the “ stopcock ” by means of a long-handled wrench, and then to slowly turn the globe valve, which would permit the steam to pass unobstructed through the other parts composing the blow-off appliance; he was also directed, when the water in the boiler was sufficiently blown out, to first gradually close the globe valve and then shut the stop cock. So it is" apparent, if such instructions had been followed,, comparatively little pressure could be exerted upon the system of pipes beyond the globe valve when the blow-off apparatus was being-operated.

It. also appears, without contradiction, that the deceased was directed to maintain a steam, pressure of substantially seventy pounds, and that an indicator was at hand to inform him of the pressure being exerted at any given time. The duties of the deceased under his specific instructions were confined to keeping up the fire, seeing to it that the boiler was supplied with sufficient, water, keeping the engine properly oiled, putting on or shutting off the power as required and blowing off the boiler practically, at the close of each day’s operation of the mill. He was expressly instructed not to attempt to repair any defective appliance or to endeavor to regulate its operation, but in case of difficulty to immediately inform the superintendent. Notwithstanding such instructions it appears that some weeks prior to-the accident the deceased, upon his own motion, attempted to correct a defect in one of the sections of pipe composing the blow-off, and the evidence indicates that in making such correction such force was used as might have weakened the structure. Such attempt was not known to the defendant or what occurred in respect thereto..

There is evidence tending to show that the connection between the pipe attached to the boiler and the globe valve was. defective and that such defect was known to the defendant. The evidence, however, wholly fails to justify the -conclusion that such defect, if it' existed, caused' the accident. Whether the accident' occurred because of it or for some other cause is purely speculative. The weakened joint might have caused it,.as might a variety of other causes, notably the opening of the globe valve before the stop cock was opened. When found after the accident the parts, composing the blo w-off apparatus were separated and scattered about the room, the only definite information obtainable respecting them being that the globe valve and the stop cock were both open. This condition would indicate very clearly that the explosion did not occur by reason of any defect-fin the joint between the pipe extending from the boiler to the globe valve; it aha the stop cock being open no pressure could • be exerted upon such joint. With the stop cock and globe valve both open no obstruction, was offered to the escaping steam. How then did the accident occur ? Was.it because of a defective coupling which had served its purpose for years without accident, or- was it because the deceased did some thing in violation of his orders, to wit, opened the globe valve 'before opening the stop cock; or because he in some manner improperly or carelessly interfered with the blow-off appliance, which he_ was expressly instructed not to meddle with ? The evidence wholly fails to show what the deceased did - or did not do in the premises. Whether he operated the blow-off as directed or in violation of such directions is in no manner shown by the evidence. Whether the accident resulted from' the defective pipe or because of some careless act of the deceased is equally undisclosed. ■ The accident may have resulted because of a defective union of the pipe attached to the boiler and the globe valve; also, it may have resulted' wholly independent of such defect, if. it existed, and because in blowing off the boiler the deceased opened the valve befoie he opened the stop cock, or because df .some other improper manipulation ondiis part; because he permitted too great a pressure of steam; because the water-in the boiler was permitted to get too low; or because the deceased, in violation of his orders, was attempting to change or remedy some defect in the blow-off, as lie had done some weeks before. Whether the explosion resulted because of the negligence of the defendant or on account of the negligence of the deceased it is impossible to determine from the evidence. All the evidence discloses is that the decedent was in charge of the boiler; that a certain appliance connected therewith, certain parts of which were defective, exploded, and that as a result he sustained injury which caused his death\ Whether such defect caused the explosion and death or whether it was caused by some negligent act of the deceased does not appear. Such being the state of the evidence, it must be hejd that the plaintiff failed to meet the burden of showing that her intestate was free from contributory negligence.

It is undisputed that in actions to recover for the death of another resulting from negligence, where there is no eye-witness of the accident, freedom from contributory negligence on the part of the decedent can be established by circumstances, but this court has recently held that in the absence of testimony, either direct or inferential, that the intestate had exercised the cautions demanded of him, it could not be .said that the plaintiff had shown that the intestate was free from contributory negligence. (Scheir v. Quirin, 77 App. Div. 625.)

In the case at bar no circumstances are disclosed which tend to prove freedom from contributory negligence on the part of the deceased.

In Wiwirowski v. Lake Shore & M. S. R. Co. (124 N. Y. 420) the rule is stated in the head note as follows : “ While want of contributory negligence, on the part of a person killed at a railroad crossing, may be established by inferences drawn from the circumstances, such an inference may not be drawn simply from a presumption that a person exposed to danger will exercise .care and prudence in regard to his own safety.

“ In an action to recover damages for alleged negligence causing death, freedom from contributory negligence must be proved, and where the circumstances point as much to the negligence of the deceased as to its absence, or point in neither direction, a refusal to nonsuit is error.”.

The cases relied upon by the respondent’s counsel as sustaining the proposition that freedom from contributory negligence may rest-' upon inferences drawn .from proved circumstances, do not apply to a case like the one at bar. The leading case of the class to which, respondent calls attention is Galvin v. Mayor (112 N. Y. 223). There the deceased, in the regular performance of his duty, went-into an open hatchway in the sidewalk, the covering of which,'a-heavy iron grating, was thrown back, but not properly fastened; it-fell and caused the death; no one saw the door fall; but it was held that the inference might have been properly drawn from the facts- and circumstances that the deceased was free from contributory negligence.. There the deceased had no duty to perform in respect to the grating, and he entered the hatchway in the discharge of his-, duty; therefore, the inference was permissible that lie did not pull the grating over upon himself. If an employee of the defendant,, other than the deceased, had gone into the boiler room in the regu- ' lar course .of his employment, having no duty to perform -relating to-the boiler, and an explosion had occurred of the character in question, and which had caused his death, the inference would have been permissible that such explosion was not caused through his negligence. But in the case at bar plaintiff’s intestate was in charge of ' •the boiler and the blow-off appliance connected therewith; it was-all under liis charge and supervision, and, therefore, it is not enough to show that an' accident occurred and that a certain part of the-appliance was defective, but in addition it is incumbent upon thé plaintiff to show that the.deceased did no act which contributed to the accideht. (Dobbins v. Brown, 119 N. Y. 188.)

In an action for negligence “it is incumbent upon the plaintiff to show by a preponderance of evidence such facts and circumstances, as will satisfy the minds of the jurors that the deceased exercised-proper' care and prudence and did not omit the precautions' of a, •prudent man under the' circumstances. The law demands proof' and' not mere surmises.” (Riordan v. Ocean Steamship Co., 124 N. Y. 655, 659; Bond v. Smith, 113 id. 378; Hoag v. N. Y. C. & H. R. R. R. Co., 111 id. 199.)

In the case at bar we think the plaintiff wholly failed to prove any facts or circumstances which would justify the inference that her intestate was free from contributory negligence.

It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide event.

All concurred, except Spring and Williams, JJ., who dissented upon the ground that the case was properly submitted to the jury.

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