
    Philip Lipp, as Administrator, etc., of George Lipp, Deceased, Respondent, v. Otis Brothers & Co., Appellant, Impleaded with Charles J. Gillis and Stephen J. Geoghegan and Benjamin Altman, Respondents.
    
      Negligence — act of a contractor’s superintendent in turning steam into an exhaust pipe full of water, without seeing whether its drip valves were open — evidence as to , the use of wages —• an error in the dismissal of the complaint as'to some of several joint wrongdoers, not available to the others.
    
    A stonecutter engaged in -fitting stone on the top of a building in process of construction was fatally scalded by water which had collected in an exhaust pipe connected with elevator pumps, which were being installed in the building, in connection with elevators, by a contractor. The accident occurred because the superintendent of the contractor, Without inquiring or observing whether certain drip valves, designed to free the exhaust pipe from water were open, turned steam into the elevator pumps to increase their action, and the steam, in turn, finally drove the water in the exhaust pipe out on the roof.
    In an action brought by the administrator of the stonecutter against the elevator contractor and others,
    
      Meld, that the elevator contractor was liable, as .the jury was justified in finding that the accident resulted from the negligence of its superintendent in turning on the steam without paying any attention to the condition of the drip valves of the exhaust pipe:
    That, as it appeared that the deceased was in the habit of giving all his earnings to his father, it was competent for the latter to show what use he had been accustomed to make of the wages which he received from the deceased, and how necessary they were for the support of .his family.
    In an action against several parties defendant to recover damages resulting from the death of the plaintiff’s intestate, caused, as alleged, by the defendants’ negligence,- the propriety of the ruling of the trial court in dismissing the complaint as to some of the defendants, cannot, upon an appeal from a judgment in favor of the plaintiff against the remaining defendant, be considered by the appellate court, unless the evidence introduced upon the trial shows that the accident arose solely from the negligence of those defendants as to whom the complaint was dismissed, or of one of them.
    Appeal by the defendant Otis Brothers & Co., from a judgment of the Supreme Court in favor of the plaintiff as against the defendant Otis Brothers & Co., entered in the office of the clerk of the county of Hew York on the 17th day of Hay, 1897, upon the verdict of a jury for $5,000, which judgment also dismissed the complaint as to the defendants Charles J. Gillis and Stephen J. Geoghegan and Benjamin Altman, and also from an order entered in said clerk’s office on the 13th day of Hay, 1897, denying the said defendant’s motion for a new trial made upon the minutes.
    
      John M. Scribner, for the appellant.
    
      Abram I. Elkus, for the plaintiff respondent.
    
      Joseph Larocque, Jr., for the defendant respondent Altman.
   Van Brunt, P. J.:

This action was brought by the plaintiff, as administrator, of George Lipp, deceased, against the corporation of Otis Brothers & Co., appellant, and the firm of' Gillis & Geoghegan and one Benjamin Altman, to recover damages resulting from the death of the decedent, alleged. to have been caused by the negligence of the defendants.. Upon the trial of the action the complaint was dismissed' as against the defendants Gillis & Geoghegan and Altman,, and the jury found a verdict in favor of the plaintiff against the corporation Otis Brothers & Co.,, the present appellant..'

In discussing the questions presented upon this appeal, the pror priety'of the ruling of the court in dismissing the complaint as toGillis & Geoghegan and Altman cannot be considered unless the evidence introduced upon the trial shows that the accident arose solely from the negligence of those defendants, or one of them. It is a-familiar principle that where several parties participate in a w'rong, or where injury results , from negligence in which several parties, participate, the person injured may maintain his action against either of the wrongdoers, .or all. It, therefore, follows that,, although the-defendants Gillis & Geoghegan and the defendant: Altman, may have contributed by their action to the happening of the accident,, yet, iff the-, negligent participation of the defendant appellant was-necessary to accomplish the result, it is liable, even though the other wrongdoers should not he. pursued, or though, the complaint as to-them .should be dismissed. (Barretts v. Third Ave. R. R. Co., 45 N. Y. 628.)

It appeared from the evidence that the defendant Altman, during-the summer of 1896> was the owner of, and engaged in constructing,, a new building on Eighteenth and nineteenth streets as an extension to his previously ’ existing store on the westerly side of Sixth avenue-in the city of New .York. For that purpose he made a contract with the defendants: Gillis & Geoghegan to provide the steam fitting,, boilers, pumps, etc., which might be required in said building as per certain specifications. These specifications included the exhaust-pipes, which will' be hereinafter referred to. The defendant .Altman made another contract'with the defendant Otis Brothers & -Go-to.-furnish and erect for use'in said building ten hydraulic passenger elevators and to extend the rise of two other elevators and to-furnish and erect, certain hydraulic dumb waiters according, to specifications set out in the case. These specifications required the con struction of certain pumps necessary for the operation of the elevators; but the -steám connections with the primps were to be made by the owner of the - building, and this work was included in the contract between him and Gillis & Geoghegan. The defendant Altman had a third contract with B. A. & G. U. Williams for the cut stone work of the new buildings ; and the.deceased was one of Williams’ employees. He was at work on the 11th of August, 1896, the day of the accident, cutting and fitting stone on the stone railing on top of the Eighteenth street wall of the building. The contract o.f Gillis & Geoghegan. provided that they should also furnish all valves, pipes and fittings and make all steam drip and exhaust connections with the elevator pumps and also all connections for feeding the boilers and for returning the waters of condensation back to the .boiler. They were also to carry the fourteen-inch exhaust pipe to and above the roof of the building, which was to be there capped with an approved exhaust head with drip down to the blowroff tank in the cellar. The exhaust from the pumps was connected with this fourteen-inch main exhaust. There was a drip at the bottom of the main exhaust having no valve and which was necessarily always open. There were also valves both in the.steam pipes and the exhaust pipe, connections with the pumps and drips just above these valves. The exhaust connecting the pumps with the main exhaust was a ten-inch pipe part of the way, and part of the way a fourteen-inch pipe, and was of considerable length.

Upon the day of the accident Gillis & Geoghegan had carried the fourteen-inch exhaust pipe to the roof, and then it had been carried a short distance in a horizontal direction, but no exhaust head had been yet put on. The work had so far progressed that ' the elevators had been in use for a considerable period of time, steam being supplied from the boilers which had been put in by Gilis ■ & Geoghegan, and the exhaust carried from the elevator pumps, by the exhaust pipe constructed by Gillis & Geoghegan. Although the elevators had been in operation for some time, the appellants, Otis Brothers & Co., were still in charge of these ele- ■ vators and the pumps which operated the same, and had not turned over the work to the defendant Altman. These elevator ptimps were arranged so that they would run automatically, and they had been in use so that some of them at least ran all night.

A man named William Jurgensen was in. charge of the work which Otis Brothers were doing in the construction of these elevators and pumps in this building. Upon the morning of the 11th of August, 1896, the attention of Jurgensen was called by one Cullen, the assistant engineer of' Altman,- who was then on duty, to the fact that, the elevator was running very slow and would not carry any weight. Jurgensen and Cullen went together to the pump that operated the elevator. It was moving very slowly. ■ Jurgensen examined the valves on the pump and found everything apparently all right except the steam valve, the supply to the pum-p, which he found nearly closed., “ just off the seat.” This valve he opened gradually and started- the pump going. Before opening the valve, he looked at the water gauge, which ought to have shown one hundred and twenty pounds pressure, and found it between seventy-five and eighty pounds. The pressure soon went up to its normal condition. ■>

-Jurgensen further testified that there were certain drip valves attached to the exhaust-pipe, which allowed the condensation from the steam in the exhaust pipe to pass away, and that he did not inquire or ascertain or observe whether the drip valves were open that morning. In apother place, however, he testified that he examined the drip pipes upon the pump, but that he did not examine those on the exhaust pipe.

Cullen, when he was examined, stated that he examined all the drip valves at the time the steam was turned on, and that they were open. Jurgensen was aware of the incomplete condition of the exhaust pipe upon the roof; he was also aware that workmen were engaged upon the roof. In about half an hour after this valve had been opened and the steam turned upon this pump, a large quantity of boiling water and steam were thrown out from this fourteen-inch exhaust pipe upon the roof, over the front of the building into the street, and the deceased, who was working upon the stonework in front of the building,. was scalded to death.

The evidence tends to establish that, during the night-, there must have collected a large quantity of condensed steam in some part of. this exhaust pipe, and that it was thrown out when the steam let into the exhaust from the pump had acquired sufficient power to force the water out of- the top of the fourteen-inch. exhaust pipe, thus causing the accident. The evidence further tended to show that, with the exhaust drip valves open, there was no possibility of the collection of such a body of water in the exhaust pipe; and, also, that it would be negligence, where a steam plant was'in operation, to turn on steam without first ascertaining whether the drip valves had been opened so that water had not collected in the exhaust.

The evidence further tended to show that, if such drip valves were shut, the water would not be discharged from the exhaust immediately upon the opening of these valves, but that it would require some lapse of time after the opening of the valves to allow the water to escape. '

How, it is clear, upon this condition of the evidence, that, if Jurgen sen turned on this steam, paying no attention as to whether the drip valves were open or not, being aware that a small amount of steam had been escaping through the steam valve all night, and that if the drip valves were closed it might have condensed and lain in the exhaust pipe, he knew that the inevitable result would be to force this condensation out of the top of the exhaust pipe and would necessarily endanger every person working in its vicinity. Such an act upon his part would be clearly negligence in the management of this machinery of which he was in charge as the representative of the appellant defendant.

It is undoubtedly true that there was evidence from which the jury might have found that these drip valves were open, and that no condensation should have occurred in the pipe, the positive evidence being that, had the drip valves been open, such condensation would not have remained in the pipes and could not have been blown out in the manner in which it was done on turning steam upon the pump.. There was also evidence from which the jury might, from the fact that this condensation was blown out of the exhaust after the steam had been turned on the pump, have found that the drip valves connected with the exhaust had not been open for any appreciable length of time before the turning on of the steam, and that the accident happened because of the negligence of Jurgensen in turning on the steam without paying attention to the drip valves.

Upon this state of the proof it was for the jury to determine whether the evidence that these' drip valves had been open during the night was true or not.

It is urged upon the part of the appellant that the action of Grillis & G-eoghegan in allowing this steam plant to be used without the main exhaust being capped with the exhaust head required by the terms of the contract, was negligence upon their part and contributed to the happening of the accident. Even if this be so-, it does not relieve the appellant, because the negligence of its employees also contributed to the happening of the accident by turning steam upon the pump without ascertaining whether the exhaust was free or not.

' It is also claimed that error was committed in the admission of evidence in regard to the family relations of the deceased and the plaintiff. It appears that the deceased was in the habit of giving all his earnings to his father, who gave him a small amount for his own expenses and used the balance in support of his (plaintiff’s) family. In this state of the case it was entirely proper for the plaintiff to show what use he had been accustomed to make of the wages' which he had received from the deceased and how necessai-y it was for the support of those whose welfare he, had been accustomed to look after.

Upon the whole case, therefore, there seems to have been no error committed prejudicial to the appellant, and the judgment and order should be affirmed,'with costs.

Patterson, O’Brien and McLaughlin, JJ., concurred; Ingraham, J.,- dissented.

Ingraham, J. (dissenting):

The- accident which resulted in the death of the plaintiff’s .intestate was caused by a discharge of hot water from, an exhaust pipe upon the roof of a building in course of construction. Tlié ground upon which the learned court below refused to dismiss the complaint as to the defendant company was that there was evidence that the said defendant’s foreman was negligent in turning the steam on to the pumps which furnished the motive power for the elev_ators which were in charge of the defendant company. The foreman, who was called as a witness for the plaintiff, testified that it would, be an act of negligence to turn on this, steam without having first examined to see whether the drips connected with the pumps were open, so that when the steam was turned on there would be no accumulation of water in the pumps or the exhaust pipes. But the same witness testified, as did another witness called by the plaintiff, that before this steam was turned on these exhaust pipes were examined and found to'be open, and that there was no indication of any accumulation of water in the pipes at the time the steam was turned on. There was no testimony introduced on behalf of the plaintiff to contradict the evidence of the foreman and the engineer of the building. The court, however, held that, although these witnesses were called by the plaintiff and swore positively that these drips were open, the jury could find that their testimony was not true from the fact that after the steam was turned on the water was violently expelled from the exhaust pipe upon the roof; in other words, that the fact that there was water in the exhaust pipe leading from the cellar to the roof which the steam, after it had worked the pump, blew out of the pipe, was evidence from which the jury could find that the testimony of the defendant company’s foreman and the other witnesses who positively testified that these pipes connected with .the pumps were open, was untrue. The evidence is uncontradicted that, when the defendant company’s foreman arrived at the building in the morning, he found the steam pressure to the pump to be seventy-five pounds to the square inch. The pressure was sufficient to move the elevator with one passenger, but not sufficient to move it when more heavily loaded. The pumps and the whole machinery were apparently in good working order, but the pressure of steam was not sufficient to operate the heavily-loaded elevator. There was nothing to indicate that there was any accumulation of water in the pumps, or that there was anything the matter with the pumps except the fact that the pressure of steam was not sufficient-; and it would seem from the evidence that if the water had accumulated in the pumps during the night, with this pressure of seventy-five pounds of steam, its effect would have been noticeable in the morning, so that the accumulation of water instead of the insufficient pressure of steam would have been the reason of the refusal of the elevators to act. All that the defendant company’s foreman did was to increase the pressure from seventy-five pounds to one hundred and twenty pounds to the square inch. There was nothing to show that this increased pressure would blow out this pipe when the former pressure of ' seventy-five pounds would have been insufficient for that purpose.

It may be surmised that if the drips had been closed, and if water had been allowed to accumulate in considerable quantity in these pumps and in the exhaust pipes connected with the roof, the turning on of the steam at the pumps would gradually have caused that water to be forced up to the roof, -and would have been sufficient to force the water out of the pipes upon the roof. But it does not appear, that there were not other means by which this water could have accumulated in this exhaust pipe to the roof except from these pumps; and it do'es not, therefore, follow because water was blown. out of the pipes in the roof that it had accumulated in the pumps,, or the pipes connected with the pumps, or that the defendant’s foil-man did not examine the drips before he turned on the steam,, because of the fact that there was water in the exhaust pipes to the roof which was subsequently blown out by the pressure of steam from the pumps. Here the steam had been on during the night at-a pressure of seventy-five pounds, the pumps working apparently without difficulty, except that the force was not sufficient to move a loaded elevator. ' There was no evidence to show that' simply increasing the pressure of steam supplied to the ptimps would be likely to cause such an. accident as followed, especially if the drips from the pumps were open, and there was no evidence that they were not. ■

I think, therefore, that the finding of the jury that the defendant company’s foreman did increase the pressure of steam, without ■examining the valves to see whether the drips from the pumps were open or not, was unsupported by the evidence, and .for that reason the judgment should be reversed.

Judgment affirmed, with costs.  