Nelson v. City of New York — 101 A.D. 18

Majority

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Margaret Nelson, as Administratrix, etc., of James Nelson, Deceased, Respondent, v. The City of New York, Appellant. Bridget Digby, as Administratrix, etc., of William Digby, Deceased, Respondent, v. The City of New York, Appellant.

Headnote

Negligence — a recovery, is not proper where either of two ca/dses,for one of Which, tlie '■ defendant is liable, for the other of which it is not, may have caused the injury —r- ■ . liability of a mastes' who furnishes to a fireman water so impregnated with chlorine^ as to. corrode the steam boiler -—the fireman is not presumed to assume tM risk, where épperi knowledge is. necessary to ascertain it.

Where, in an action, brought to recover damages resulting from the death of: the plaintiff's intestate, it appears that the death was due to one of two causes,, for one of which the defendant was responsible, and for the other of which it; ' was hot' responsible; the plaintiff- cannot succeed where it is just as probable; that the death resulted from one cause as from the other.

The doctrine- of assumption of risk has no application to a case where the" injured’. . employee is not shown and. cannot be presumed to have possessed the knowledge necessary to enable him to detect or realize the danger.

A master whb furnishes to his servants for use in a boiler water so highly-impregnated with chlorine as to give rise to a-rapid corrosion and consequent weakening, of the holler, not produced by water ordinarily employed, for boiler purposes, owes to such servants the duty of warning them against- the increased danger arising from such corrosion or of adopting some other safeguard for the. protection off such servants.

The fireman and engineer; in charge of a steam boiler, in which water of such character is used, cannot reasonably he expected to possess the. expert knoM-' edge necessary to enable them- to ascertain for themselves the chemical nature, and effect of such water.

. Appeal in each of- the above-entitled actions by the- defendant,; The" City of Hew York, from a judgment of the. Supreme Court in

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favor of the plaintiff in each action, entered in the office of the clerk of the county of Queens on the 3d day of February, 1904, upon the verdict of a jury for $8,000 in the first above-entitled action, and for $12,500 in the second action, and also from an order entered in said clerk’s office on the 19th day of February, 1904, in eacli action denying the motion of the defendant in such action for a new trial made upon the minutes.

These actions were brought to recover damages for the negligent killing of James Nelson, a fireman, and William Digby, an engineer,_ in the employ of the city of New York, who lost their lives in consequence of the explosion of a boiler at a city pumping station in the borough of Queens. The cases were tried together by the consent of counsel and with the sanction of the court and resulted in a verdict of $8,000 for the plaintiff in the Nelson suit and $12,500 for the plaintiff in the Digby suit.

James D. Bell [ John E. Walker and John J. Delany with him on the brief], for the appellant.

John B. Merrill, for the respondents.

Recognizing the defendant’s duty to furnish the fireman and engineer a reasonably safe place in which to do their work and reasonably safe appliances tó work with, the learned assistant corporation counsel insists that this duty was performed. The theory of the defendant’s negligence, as the issues were submitted to the jury by the learned trial judge, was based solely on the proposition that the water furnished for use in the boiler which exploded was so overcharged with chlorine as to be dangerous for the use to which it was put on account of its corrosive action on boiler metal. To* the corrosion caused by this water the plaintiffs attributed the fatal explosion. Counsel for the appellant deny the sufficiency of the evidence to establish this conclusion. They argue that the explosion could have been brought* about by carrying an excessive head of steam or by the imprudent introduction of cold water into the heated boiler just as well as by the chemical action of the chlorine with which the water was charged, and they rely upon the doctrine that where damage has been inflicted by one of two causes, for one

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of' which the defendant is responsible and for the other of which he is not responsible, the plaintiff cannot succeed where it is just as probable that the damage was done by one cause as by the other. (Searles v. Manhattan Railway Co., 101 N. Y. 661 .; Ruppert, v, Brooklyn Heights R. R. Co., 154 id. 90; Laidlaw v. Sage, 158 id. 73.). .

If the record disclosed such a condition of the evidence as this , argument' asserts, the principle of law invoked would, of course, demand a reversal. But the proof, as I read it, preponderates clearly in favor of the contention that-the. explosion of the boiler was due to the corrosive chemical action of tlie water furnished by the city for use therein, and negatives the idea that it could have been produced by. the other causes which are suggested in behalf of the appellant. The plaintiffs proved without substantial contradiction that the water contained a percentage of' chlorine which unfitted it for use in boilers on account of- the ’ resulting Corrosión, and then called an expert witness, whose, qualifications were nob questioned; who expressly testified that lie had examined the boiler metal and that the cause of the explosion was the weakening of the toiler from the action of the chlorides contained in the water. ■With this evidence in the case and nothing before.them to controvert it, the jury .were quite justified in adopting the opinion of the' witness and in attributing the explosion to the same cause which he did. ‘ ■.,!.' - .

It is doubtless true, as counsel for the appellant suggest, that the use of water containing some chloride is. not negligence of itself. When, however, a master furnishes water to his servant for use in a boiler, which water is so constituted chemically that it.gives rise to a rapid corrosión and consequent weakening of the boiler not produced by .water ordinarily employed for boiler purposes, he owes some duty of warning, against the increased danger arising from . such'corrosion or, the adoption of some other safeguard for the pro-\ tection of the servant. There is no evidence that the deceased firer man and engineer were ever informed as to the dangerous nature of the, water and they could not reasonably be expected to.possess the expert knowledge necessary to enable them to ascertain its chemical nature and effect'for themselves-. There is a statement from'an officer of the. water department having superintendence of the

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pumping station where the accident occurred, to the effect that the boilers there were inspected every six weeks, but we are told nothing in regard to the character of the inspection by any witness who. made it. Upon this branch of. the case the learned trial judge charged the jury: “ I do not say it was the city’s duty to withdraw that water, because that was the only water they had there, but to reveal the danger to these men so that they might govern themselves accordingly and make such close examination of these boilers — closer than would be necessary in an ordinary case — as was necessary to show that the dangerous point had not been reached. If the city failed in that point negligently then you would be. able to find against the city, providing the two deceased men were themselves'not negligent within the definition that I have heretofore given you.” This instruction was evidently acceptable to counsel for the defendant who took no exception to it, nor indeed to any portion of the charge as the case finally'went to the jury. At. all events it was correct, and the jury guided thereby doubtless reached the conclusion, amply warranted by the evidence as a whole, that the city was negligent in failing to exercise any reasonable precaution to protect the plaintiffs’ intestates against the danger arising from the use of the water in question.

The doctrine of assumption of risk has no application to a ease where the injured person is not shown and cannot be presumed to have possessed the knowledge necessary to enable him to detect or realize the danger.

I think that these cases were correctly tried and correctly decided. It follows that we should not interfere with the results reached in the trial court.

■ Present—Hirschberg, P. J., Bartlett, Woodward, Jenks and Hooker, JJ.

Judgment and order in each case unanimously affirmed, with costs. . -

Cases cited

Searles v. Manhattan Railway Co. 101 N. Y. 661 N.Y. 1886-03-02 p. 20