Healy v. Buffalo, R. & P. Ry. Co.

About 8 o’clock p. m. on the 18th day of September, 1904, while the plaintiff was employed as fireman on one of defendant’s switch engines being operated in its yard at East Salamanca, N. Y., the water glass attached to such engine exploded in such manner that a piece of the broken glass was forced through the water gauge guard, struck the plaintiff in the eye, and caused the loss of its sight. To recover the damages resulting from such injury this action is brought.

At the time of the accident the plaintiff was 20 years of age, had been in defendant’s employ continuously for about three years. First, for about a year he was engaged in coaling engines at Ashford, N. Y., a junction point on defendant’s road. After that for about two years he was employed as fireman upon engines running regularly between that point and Rochester, N. Y., or Gainesville, Pa. He then went to Salamanca to take the position of “hostler,” and that was his regular employment at the time of the accident and for about three weeks previous. “The duty of a hostler is to take an engine when it is brought in out of service, and keep it until it goes out again—get it ready to run on the road. After the hostler takes charge it is run over the pit, and then there is the engine inspector that inspects every engine that goes over the pit, thoroughly.” After going to Salamanca, when the plaintiff did not have work to do as hostler, he acted as fireman upon the yard engines, as occasion required, and was so employed on engine No. 156 when he received the injuries complained of. Within a few minutes after assuming the duties of fireman on such engine, while looking at the water gauge, as it was his duty to do, the explosion occurred with the result above stated.

The evidence indicates that the plaintinff was a bright, active, intelligent young man, fully understood the duties of a fireman, and at least in a general way was familiar with the methods adopted by the" defendant for the conduct of its business in the yard in question. It is urged on behalf of the respondent that the evidence tends to establish that the defendant was guilty of negligence upon two grounds and so as to justify the verdict rendered by the jury: First, because it had not equipped the engine in question with a safer or better style or pattern of water gauge guard; and, second, because it failed to properly inspect the water glass which exploded, it being claimed that a reasonable inspection would have disclosed that it was so defective as to render its use unsafe. Practically those were the only questions involving the defendant’s negligence submitted to the jury, and it is not claimed that any other could be predicated upon the evidence. The jury must have determined one or both of such propositions favorably to the plaintiff; therefore their verdict. If the evidence did

The evidence conclusively establishes that the kind or pattern of water gauge guard, which inclosed the tube or water glass which exploded, was in general use; had been adopted by practically all the railroad corporations in the country. It was the kind used by the New York Central Railroad Company and other equally important and well-known railroad corporations. The Baldwin Locomotive Works, which manufacture practically 50 per cent of the locomotive engines used in the United States, equip their engines with the same style or pattern of water gauge guard. The evidence, however, tended to show that there were other kinds of water gauge guards also extensively used, which were safer, and that the defendant had about one-half of its engines equipped with such other alleged safer guards. It is the settled law in this state that an employer does not owe to his employé the legal duty of furnishing the best known appliances in the conduct of his business in order to protect such employé against injury. He is only required to furnish such as are reasonably safe, and in selecting one of several appliances devised for doing a particular work, and in determining which is the safer, he may rely upon the judgment of others engaged in the same business, and, if the appliance selected by him is in general use and has been generally adopted, he is not liable to an employé who may be injured because of the use of the appliance so selected, notwithstanding it may appear that another kind or pattern of such appliance, also in use, was safer and less liable to injure an employé operating or in charge of the same. Stringham v. Hilton, 111 N. Y. 188 , 18 N. E. 870 , 1 L. R. A. 483 ; Sisco v. L. & H. R. R. Co., 145 N. Y. 296 , 39 N. E. 958 ; Coppins v. N. Y. C. & H. R. R. R. Co., 43 Hun, 26 ; Frace v. N. Y. L. E. & W. R. R. Co., 143 N. Y. 182 , 38 N. E. 102 ; Flinn v. N. Y. C. & H. R. R. R. Co., 142 N. Y. 11 , 36 N. E. 1046 ; Harley v. B. C. M. Co., 142 N. Y. 31 , 36 N. E. 813 ; Leary v. Lehigh Valley R. R. Co., 76 Hun, 575 , 28 N. Y. Supp. 187 . In view of the evidence bearing upon this proposition and considering the authorities referred to, it must be held as matter of law that the defendant was not guilty of actionable negligence because the engine upon which the plaintiff was employed as fireman was equipped with the water gauge guard in question. As we have seen, it was such a guard as was in general use and had been adopted by practically all great railroad corporations of the country as well as by the largest manufacturer of locomotive engines, and therefore we think the defendant was not chargeable with negligence for having used such appliance, notwithstanding there were others which in the opinion of experts were safer and the use of which was less liable to result in injury to an employé.

While the conclusion thus reached must result in a reversal of the judgment, because the verdict of the jury may have been based solely upon such alleged ground of negligence, we deem it proper to consider the other proposition imputing negligence to the defendant, which was submitted to the jury by the learned trial court. A water gauge such as is used upon a locomotive engine is so familiar to all it hardly need be

We think the duty of the engineer upon the engine in question is concisely stated in the headnote in Manning v. Genesee River & Lake Ontario Steamboat Co., 66 App. Div. 314 , 72 N. Y. Supp. 677 , recently decided by this court:

“Where a water gauge attached to a steamboat boiler is fitted with a glass which’ Is liable to break at any time, and the operation oí replacing the.

broken glass can be readily performed by turning off the valves at either end of the gauge and thus shutting off the water, and then taking out the defective glass and putting in a new one from a supply kept on hand, the duty of replacing the defective glass is incumbent upon the engineer in his character as a servant”

In the case at bar, while there is evidence tending to show that it was not the duty of the engineer operating a. switch engine in' the yard to remove a defective water glass, it is established beyond dispute that it was, his duty to report any defect in such appliance which he discovered. No defect in the water glass in question was reported by him, and we think actionable negligence cannot be predicated upon the fact that the defendant failed to discover such defect, in the absence of a report or information by the engineer to that effect. We conclude that the evidence wholly failed to establish that the defendant was guilty of actionable negligence, because it failed to make any other inspection than it did in order to discover the defect in the water glass which exploded, even if a discoverable defect existed.

It follows that the judgment and order appealed from should be reversed, and a new trial ordered, with costs to appellant to abide event, upon questions of law only; the facts having been examined and no error found therein.

Judgment and order reversed, and new trial ordered, 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 HIS-COCK, J., not voting; he having ceased to be a member of the court.