Goodhines v. Chase

At about C 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 60 horse power engine, sustained injuries from which he died about two hours

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, N. 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 employé 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 stopcock, 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 stopcock. 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 70 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

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 stopcock was opened. When found after the accident, the parts composing the blow-off apparatus were separated and scattered about the room; the only definite information obtainable respecting them being that the globe valve and the stopcock were both open; This condition would indicate very clearly that the explosion did not occur by reason of any defect in the joint between the pipe extending from the boiler to the globe valve. It and the stopcock being open, no pressure could be exerted upon such joint. With the stopcock 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 something in violation of his orders, to wit, opened the globe valve before opening the stopcock, 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 before he opened the stopcock, or because of some other improper manipulation on his 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 he 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

It is undisputed that in actions to recover for the death of another resulting from negligence, where there is no eyewitness 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 , 78 N. Y. Supp. 956 . 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 Railroad Company, 124 N. Y. 420 , 26 N. E. 1023 , the rule is stated in the headnote as follows:

“While want oí 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 proven 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 , 19 N. E. 675 . 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 he did not pull the grating over upon himself. If an employé of the defendant, other than the deceased^ had gone into the boiler room in the regular 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 his charge and supervision; and therefore it is not enough to show that an accident occurred, and that a certain

Judgment and order reversed, and a new trial granted, with costs to appellant to abide event, upon questions of law only; the facts having been examined, and no error found therein. All concur, except SPRING and WILLIAMS, JJ., who dissent upon the ground that the case was properly submitted to the jury.