Crowell v. Thomas

for which it was used. From this barrel hot and cold water were taken for the use of the,factory in canning the fruit as needed. The water was taken-from an ordinary faucet in the lower part of the barrel. Two pipes were connected with this barrel, one a cold-water pipe and the other a steam pipe. These pipes entered the barrel from the top, and' in each pipe at a point just above the head of the barrel was a valve by means of which the water or steam could be turned on or shut off. The steam pipe where it entered the barrel was a three-quarter-inch pipe. On the top of the barrel and behind the two pipes was a vent pipe an inch in diameter which extended above the top of the barrel five or six inches. It was put there to allow the steam to escape from the barrel. Tlie steam from the steam pipe communicated directly with the water in the barrel. There was no steam gauge at the barrel so that one coulij, fek how many pounds of steam pressure there was on the barrel, and the only means of escape of steam was through the pipe above specified. An expert witness testified in effect that this barrel would hold about fif- ■ teen pounds to the square inch before bursting-. The fireman of the factory testified that, at the time of the accident, he had on about seventy pounds of steam. The steam pipe to the barrel was attached to a main pipe or feeder that conveyed the steam directly from the boiler. The expert testified as follows: “Q. Can you tell this jury how much pressure a common whiskey barrel will hold of steam before it will burst; how much to the square inch ? A. I shouldn’t think it would exceed fifteen pounds. Q. Will yon tell the jury on a common whiskey barrel wliat the pressure would bo of 10 pounds of steam to the square inch coming from a steam boiler ? A. About fifteen tons. * * * The Court.— Q. Will it be the same to the square inch on the barrel as it is in the boiler? A. Yes, sir.”

James Burlingame was the defendant’s superintendent at the factory, having full charge of the same, employing and discharging the workmen and directing the whole operations of the factory, and there was evidence upon which the jury could find that in the management of the factory he was the alter ego of tlie defendant. He had had charge of it for several years; had been the owner of it prior to the ownership of it by the defendant; he was daily on duty at the factory and appeared to be entirely familiar with its opera

tion; his brother, Llewellyn Burlingame, was an employee in the factory and his principal duty was to take charge of this barrel, manipulate the steam connected with it and take the water from it as needed. One witness says the girls and women did not draw the water from the faucet; “ Llewellyn used to do that mostly. He most always attended the barrel. I never saw any woman draw the hot water through that faucet before. That wasn’t our business.” This was said with reference to the fact of the deceased drawing the hot water on that morning, to which we shall refer hereafter. The evidence does not disclose that prior to the morning of the accident the deceased had anything to do with the barrel or had any acquaintance with its use or how the steam was communicated to or operated in the barrrel, or what protection there existed against accident from the use of steam in the barrel. The steam had not been used in this barrel until the morning of the accident that season, except early in July on one occasion, and the evidence tended to show that the deceased had no knowledge in regard to that transaction. The engineer of the factory and the brother having charge of the ban-el had discovered that the cold water ran out of the escape pipe on account of the pressure, and to obviate this difficulty the engineer whittled out a plug to fill this escape pipe, and inserted the plug in the pipe about the nineteenth of July. This plug extended above' the top of the pipe four or five inches. One witness swears that he saw the plug in the pipe a week or two before the accident. Another witness swears that while standing on the floor you could plainly see the plug; that it extended above the barrel so that you could see it plainly. Another witness testified that before the plug was put in, cold water that was forced out by the pressure could be plainly seen, and also it could be seen that the water was not forced out after the plug was put in. The engineer testified that he cautioned Llewellyn Burlingame not to permit the plug to be in the pipe when the steam was put in the barrel-After the explosion of the barrel and the injury to the deceased, the plug was found in the escape pipe, establishing the fact that at the time of the explosion there was no escape of the steam that was being forced into this barrel. On the morning of the accident, and before the deceased went to work, and while Llewellyn Burlingame was at the barrel, the superintendent

appeared and directed him to go up stairs and attend to other business, sayimg that he would attend to the barrel. The superintendent himself turned the steam into the barrel and directed the deceased to attend to the faucet and take the hot water to the table as needed. She obeyed and was engaged in this work when the explosion occurred that destroyed her life. The head of the barrel blew out and she was scalded to death. There was no coil or pipe passing through the cold water in the barrel through which the steam could pass, a familiar contrivance for heating water. No caution was administered to the deceased by the superintendent as to any risk or danger in her working around this barrel and operating this faucet. A very slight inspection of the barrel would have enabled the superintendent to have seen when he turned the steam into the barrel and directed the deceased to do this work, that the vent hole was closed by this plug, and that there was no escape for the steam that was being put into this weak vessel, and it was for the jury to determine from the whole evidence whether he had not been guilty of negligence under the circumstances. The law governing such cases is well stated in Tissue v. The Baltimore & Ohio R. R. Co. (reported in 33 Alb. L. J. 284) by the Supreme Court of Pennsylvania as follows : “ Whilst it is true that the master does not warrant the absolute safety of those whom he employs to do his work, yet * * * he is bound to take heed that he does not through his own want of care expose his servant to unnecessary risks or dangers either from the character of the tools with which he supplies him or the place in which he requires him to operate.” (See Bailey v. The Rome, Watertown & Ogdensburg R. R. Co., 139 N. Y. 302 .) There was evidence to go to the jury upon the question whether the defendant, through his superintendent, did not understand the whole situation; the amount of steam that was liable to be forced into this barrel; the capacity of the bai-rel to withstand it; the means of escape, if any; whether any inspection was made of the barrel before putting the steam into it and putting the deceased at work there; whether it was not the duty of the superintendent to make such inspection; whether he was not negligent in having failed to do so.

The-learned counsel for the defendant insists that while the eause of the explosion was negligence, it was in consequence of the negligence of the engineer and of the brother, who were

co-servants with the deceased. The difficulty with that contention is that the superintendent superseded the brother, took charge of the barrel himself, directed the deceased in her work, and was for the time being in charge of the cause of the accident. It was the superintendent who provided the unsafe and dangerous place for the deceased' to work ívithout giving her notice of her danger. Even if the negligence of the co-employees contributed to this accident it was done in conjunction with the negligence of the defendant himself, through liis alter ego, and without which the accident would not have occurred. The defendant is, therefore, as liable as though he were the sole cause of the accident. (Cone v. The Delaware, Lackawanna & Western Railroad Co., 81 N. Y. 206 ; Booth v. Boston & Albany Ry. Co., 73 id. 38; Brehm v. The Great Western R. R. Co., 34 Barb. 256 ; Shearman & Redfield on Negligence, § 10.)

A master is liable for an injury to a servant caused by the concurrent negligence of the master and a fellow-servant. (De Weese v. Meramec Iron Co., [Mo. Sup.] 31 S. W. Rep. 110 .)

The exceptions taken at the trial bring up the question here considered. We are of the opinion that the case should have gone to the jury upon the question of the-defendant’s negligence.

A new trial should, therefore, be granted, with costs to abide event.

Lewis, Bradley and Davy, JJ., concurred.

Motion for new trial granted, costs to abide the event.