
    Lewis W. Hudson, as Administrator, etc., Resp’t, v. The Rome, Watertown and Ogdensburgh Railroad Company, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 22, 1895.)
    
    Appeal—Review oe pacts
    All questions as to the weight of evidence are final in the general term and not reviewable in the court of appeals; but, where the evidence, which appears to be in conflict, is nothing more than a mere scintilla, or where it is met by' well-known and recognized scientific facts, about which there is no conflict, the latter court will exercise jurisdiction to review and reverse if justice requires.
    Appeal from judgment of the general term of the supreme court m the fourth judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial.
    
      D. J. Griffin, for app’lt; John N. Carlisle, for resp’t.
    
      
      Reversing 56 St. Rep. 39.
    
   Haight, J.

This action was brought to recover damages for causing the death of Harry L. Hudson, the plaintiff’s intestate. Hudson was in the employ of the defendant engaged as a fireman on engine No. 103. George H. Grower was the engineer in charge. On the 8tli day of October, 1890, at 1.45 P M. they took the engine in question from the yard in Watertown and started out with a freight train for Oswego. They took water at Water-town, Pierrepont Manor and Richland. On arriving at Mexico they stopped at the water column to again take water. The engineer then left the engine in charge of Hudson and went into the depot. A few minutes thereafter the crown sheet of the engine collapsed, allowing the steam to escape into the fire box and blow out through the door thereof, inflicting injuries upon Hudson from which he shortly thereafter died. An examination of the engine, after the accident, disclosed the fact that the crown sheet had been scorched throughout its entire length, covering an area -of thirty-two inches at the front of the firebox and gradually dimimshing until, at the back end the scorched area was sixteen, inches m width. The scorched part was white, of a bluish cast, and perfectly clean, having no soot, or other substance attached to it The crown sheet had been" convex, but had reversed its arch and pressed down into the fire box a distance ot seventeen and a half inches, so as to become concave Prior to the accident the crown sheet bad been supported by numerous stay bolts, screwed into the plate and riveted on the fire box side. These bolts had drawn out, leaving holes in the sheet through which the steam had escaped into the fire box The sheet itself, after the-collapse, was extended longitudinally from ten to fourteen inches,, and the holes caused by the withdrawing of the stay bolts had become elongated. The engine was- nearly new ; of first-class con struction, and in other respects was in perfect condition.

It is conceded by all parties that the accident occurred m con sequence of the scorching of the crown plate. It is contended on behalf of the plaintiff that the scorching had taken place at some previous time, and that the defendant ivas negligent in sending the' engine out upon the road while it was m that condition On behalf of the defendant it is claimed that the scorching took place at the time of or just preceding the accident.

The question is thus presented as to when and where the scorching took place. The only evidence presented on behalf of the plaintiff bearing upon this question is that of the engineer m charge and the hostler in the yard at Watertown The engineer testified that he kept the crown sheet covered with water throughout the entire trip, and that on arriving at Mexico it still had two full gouges, which would be about six inches of water over the sheet. The hostler testified that he kept the engine watered whilst it stood in the yard at Watertown under his charge B'rom this evidence the jury was asked to find as a fact that the crown sheet had been scorched on some occasion prior to the accident Opposed to this are the facts disclosed by the examination ot the engine after the collapse and the testimony of the experts, from which it appears that the crown sheet was constructed ot steel; that scorching tended to make it more dense and less ductile, so that it would be more liable to crack and less liable to expand; that it could not scorch or become red hot whilst covered with water, and that in their judgment the crown sheet must have been red hot at the time it collapsed.

The plaintiff, m order to recover, was bound to establish negli gence on the part of the defendant by a preponderance of evidence All questions as to the weight of evidence are final in the General Term, and this court has no power to review the determination of that court with reference thereto. But where the evidence which appears to be in conflict is nothing more than a mere scintilla, or where it is met by well-known and recognized scientific facts, about which there is no conflict, this court will still exercise jurisdiction to review and reverse if justice requires. People ex rel. Coyle v Martin, 142 N. Y. 852; 59 St. Rep 34; Hemmens v Nelson, 138 N Y 517-529; 53 St. Rep. 94 ; Linkauf v Lombard, 137 N Y. 417 , 51 St. Rep. 63 The judgment of the experts is based upon well-known and recognized scientific facts which to our minds is controlling. The crown sheet was found to have been scorched. It was white with a bluish cast and perfectly clean, tending to show that the scorching was- recent; had it been worked after the scorching evidence of soot and discoloration would be expected. The stay bolts had drawn out, the arch inverted, the sheet extended and the holes elongated without sign of a crack or other flaw. Could this have occurred with this steel sheet cool and under water; could it be stretched ten to fourteen inches and inverted in that condition ? The experts say no. And their judgment accords with our learning and experience.

There is no evidence that the scorching was done on any other occasion, aside from the inference that might be possibly drawn from the testimony of the engineer already alluded to. He could determine the amount of water over the crown sheet by trying the-gauge cocks. But in trying these he may have mistaken steam for water. However that may be, in the absence of further evidence showing that the sheet had been scorched on some prior occasion, we cannot regard it as presenting more than a scintilla of evidence, and will not justify a verdict against the physical and scientific facts that leave no room to doubt that the crown sheet had become dry and partially melted at the time of the collapse.

It appears from the testimony of the experts, that in case a crown sheet has been scorched and then cooled, that the stay bolts will be affected, and that thereafter there will be a leakage by the side of the bolts, and it is contended that, this crown sheet had been known to leak before the accident. One witness spoke of its having leaked, but was unable to state whether it was before or after the accident. The place where it leaked, however, was stated by him to be where the crown sheet was joined on to the side of the boiler and was not at the place where it was scorched. The evidence was, therefore, unimportant. If the crown sheet was scorched at the time of the accident, it was the fault of the engineer, the co-servant of the deceased, and not that of the defendant.

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

All concur.

Judgment reversed.  