Laura H. Meeker, as Administratrix, etc., of William H. Meeker, Deceased, Respondent, v. C. R. Remington & Son Company, Appellant

Laura H. Meeker, as Administratrix, etc., of William H. Meeker, Deceased, Respondent, v. C. R. Remington & Son Company, Appellant. Negligence — injury from, steam pipes while being tested, caused by the superintendent’s opening a valve, carusing steam hammering and the bursting of the pipe, which would have been avoided if a drip valve had been supplied,. In an action brought to recover damages for the death of the plaintiff's intestate, alleged to have resulted from the defendant’s negligence, it appeared that the work of enlarging the defendant’s paper and wood-pulp mill, in which the plaintiff’s intestate was employed as a timekeeper, was being done under the •supervision of a competent and experienced superintendent; that a new boiler and a new engine, which were separated by a distance of about one hundred feet, had been connected by means of pipes placed along the ceiling, which pipes were several inches lower at the engine than at the boiler room; that four feet three inches from the end of the main pipe in the engine room a small lateral pipe extended from it to the engine, which closed by a valve at its j unction with the main pipe, at the end of which latter pipe a six-inch tee was attached, from which a two-inch pipe extended at right angles to paper driers; that from the driers another pipe, designed to return the exhaust steam, extended back to the boilers; and that in this two-inch pipe, about ten inches from the tee, there was a valve by means of which the steam could either be shut off or be permitted to pass through it. When steam was turned on for the purpose of testing the pipes a leak was discovered at the connection of the lateral pipe, to relieve which the valve in the two-inch pipe near the tee was slightly opened and the water from the condensed steam in the main pipe was allowed to pass off. Two days later the superintendent, observing that the leak or drip still continued at the junction of the lateral and main pipes at the ceiling, slightly opened the valve in the two-inch pipe near the tee. The plaintiff's intestate came in later to make an inquiry of the superintendent, who, about this time, again opened the valve slightly, when a pounding noise, known as steam hammer, was heard in the main pipe; he then closed the valve, but the steam hammering continued and in from one to three minutes later the tee burst and the steam was emitted in such quantity as to cause the death of the plaintiff’s intestate. Evidence was given tending to show that in such a plant it was customary to insert a drip or bleeder in the main pipe at its lowest point, which (the main pipe being a few inches lower at the valve opening into the lateral pipe leading to the new engine than at the tee) would have drained the main pipe at this point, and would probably have prevented the accident. The superintendent intended to p ut in this drip, but it had not been done at the time of the accident. The court left it to the jury to determine whether the defendant had discharged its duty of providing a safe place for the plaintiff’s intestate in which to do his work, and whether the defendant was negligent and did anything which was the direct and proximate cause of the injury ; also whether or not the superintendent, in turning the valve, was the co-servant of the decedent; it denied the request of the defendant's counsel to charge, as a matter of law, that he was such co-servant and denied the further request to charge that the superintendent, in turning the valve, was performing a detail of the work and did not stand in the place of the master. Held, that a judgment entered on a verdict in favor of the plaintiff should be reversed and a new trial be ordered. Semiile, that the act of the superintendent in opening the valve, done while the work of inspection or repair was in progress, was the act of a co-servant and not the act of the defendant. Semble, that as the evidence on this subject was undisputed, the jury should have been so instructed, as a matter of law. Semble, that if the defendant was negligent in not furnishing a reasonably safe place or constructed the plant negligently, and such negligence co-operated with that of the superintendent in turning the valve, the defendant would be liable. Spbing, J., dissented. Appeal by the defendant, O. R. Remington & Son Company, from a judgment1 of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Jefferson on the 20th day of November, 1899, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 20th day of.November, 1899, denying the defendant’s motion for a new trial made upon the minutes. The action was brought to recover damages for the death of plaintiff’s intestate, which, it is claimed, resulted on the 7th day of December, 1898, from the negligence of the defendant in whose employ he was. Defendant is a domestic corporation engaged in the manufacture of paper and wood pulp at Glen Park in Jefferson county. For several years prior to December 7, 1898, it had carried on business at that place, and in the month of May preceding it commenced to enlarge its mill by altering its plant and placing in use an additional twenty-ton paper machine. During the progress of this work the mill continued in operation. The work was nearly completed at the time of the accident, but the additional machine had not been operated. Plaintiff’s intestate was employed as timekeeper. The work of enlarging the plant was done by the employees of defendant under the supervision of a competent and experienced superintendent, who was and had been for a long time superintendent of its works. A new engine had been erected and wrought iron steam pipes from eight to ten inches in diameter had been placed in position, connecting the new engine room with the boilers, which were more than one hundred feet distant therefrom. A new boiler had also been erected and had been connected with the old boilers. These pipes, leading from the boiler room to the new engine room, extended along the ceiling, the pipe being several inches lower where it reached the new engine room than near the boiler room. Four feet and three inches from the end of the main pipe in the engine room, a smaller lateral pipe extended from it to the engine, there being a valve which was closed in the lateral pipe at its junction with the main pipe. At the end of the main pipe a six-inch tee was attached, with a two-inch bushing, from which a two-inch pipe extended at right angles to the driers for the purpose of adding live steam to the exhaust steam used in drying the paper; from the driers another j>ipe extended back to the boilers, designed to return the condensed steam. In the two-incli pipe, and about ten inches from the tee, there was a valve, by means of which the steam could be shut off or permitted to pass through. This line of piping was put in place on Sunday, December 4, 1898 ; on Monday, the fifth, the valve in the two-inch pipe, as well as the valve in the lateral pipe extending to the new engine, being closed, steam was turned on for the purpose of testing the pipes. At the connection of the lateral pipe leading to the new engine a leak was discovered. To relieve this the valve in the two-inch pipe near the tee was opened slightly by O’Connor, a machinist and millwright in defendant’s employ, thus allowing the water that had accumulated in the main pipe from the condensation of steam to pass off. On Tuesday, the sixth, the steam was continued in the new pipes as before, and on Wednesday morning the superintendent, observing that the leak or drip still continued at the connection of the lateral pipe running to the engine with the main pipe at the ceiling, slightly opened the valve in the two-inch pipe near the tee, as before, for the purpose of draining off the water. Later in the morning the decedent came into the new engine room to make an inquiry of the superintendent, who was there. About this time the superintendent again opened the same valve slightly, when a pounding noise, known as steam hammer, was heard in the main pipe. The superintendent then closed the valve, the steam hammer continued, and within from one to three minutes the tee burst and steam was emitted in such quantity as to cause the death of the decedent. The main steam pipe was a few inches lower at the valve opening into the lateral pipe leading to the new engine than at the tee. It was claimed by the plaintiff that defendant was guilty of negligence in not providing a drip or bleeder for drawing off the water that might condense in the main pipe, and that provision should have been thus made for draining the pipe at its lowest point. If the valve in the pipe leading to the new engine had been opened, that being the lowest point in the main pipe, it probably would have drawn off the water, although this was not shown definitely. The superintendent intended to place a drip or bleeder in the main pipe at the point where the lateral pipe branched off to the engine, but this had not been done at the time of the accident. Evidence was given tending to show that it was customary to insert a drip or bleeder in such steam pipes. The tee that split or burst was of good material. Plaintiff contended that the water hammer was caused by the act of the superintendent in opening the valve, and evidence was introduced tending to show that as an opening is made to draw off the water, and as the water commences to move the steam condenses and a vacuum is created which pulls the water back toward the steam, and the whole body of water in the pipe is set in motion, waving back and forth, causing a series of blows. It is claimed that this ultimately burst or split the tee. It was cold weather, and under such circumstances it was claimed that the live steam being forced into this large pipe, which was at some points eight and at others ten inches in diameter, would condense rapidly, forming considerable water, which, on account of the pipe being lower at and near the end, would accumulate there. The plaintiff also claimed that defendant was guilty of negligence in admitting live steam into these pipes at a time when no provision for drainage had been made, and in opening the valve at a time when the superintendent should have known that the pipe contained a large quantity of water, and that the act of the snperintendent in thus opening the valve was the act of the defendant. At the close of the plaintiff’s case defendant’s counsel moved for a nonsuit on the grounds (1) that plaintiff failed to make out a cause of action ; (2) that there was no proof of negligence on the part of defendant; (3) that defendant fully discharged its duty; (4) that defendant is not liable for error of judgment, but only for culpable negligence, which was not shown ; (5) that defendant was not obliged to foresee and guard against such an accident; (6) that the plant was incomplete and the decedent assumed the risk ; (Y) that the act of the superintendent was a detail of the work and not the act of defendant; (8) that notwithstanding the absence of a drip cock or bleeder, it did not appear but that the pipe could have been drained through the exhaust or through the pipe to the engine. The motion was denied and defendant excepted. The court left it to the jury to determine whether the defendant lmd discharged its duty of providing’ for plaintiff’s intestate a safe place in which to do his work, and whether defendant was negligent and did anything that was a direct and proximate cause of the injury. The court also left it to the jury to say whether or not the superintendent, in turning the valve, was the co-servant of the decedent, and declined the request of defendant’s counsel to charge as matter of law that he was-such co-servant, to which ruling defendant’s counsel duly excepted. Defendant’s counsel also requested the court to charge as matter of law that the superintendent, in turning the valve, was performing a detail of the work and did not stand in place of the master. This the court declined and defendant’s counsel duly excepted. Watson, M. Rogers, for the appellant. Henry Purcell, for the respondent. [MAJORITY — Laughlin, J.:] Laughlin, J.: It is evident that the jury were given to understand that even if they found that defendant was not guilty of negligence with reference to the manner in which the plant was constructed, or in not having previously provided a drip cock or bleeder for the main steam pipe, that still if the jury found that the superintendent in turning the valve was not acting as a co-servant with decedent, and if his act in turning the valve was the sole cause of the injury, defendant would be liable. This we think was error. In effect the jury were permitted to find against the defendant, even if they believed from the evidence that defendant had discharged its duty of furnishing the decedent a reasonably safe place in which to perform his duties. If the place was safe and was made dangerous only by the acts of the superintendent in opening the valve, plaintiff' was entitled to recover under this charge, provided the jury were of opinion that the superintendent, in opening the valve, represented the master. The legal proposition thus presented is, whether the superintendent while testing machinery or appliances, so represents the master as to make the latter liable to another employee injured directly and immediately by the superintendent’s negligent act. It is, of course, well settled that it is the duty of a master to furnish reasonably safe tools, machinery and appliances to his servants and to inspect the same from time to time. The person furnishing the tools, machinery and appliances, and the employee who inspects the same, in so doing performs a duty which devolves upon the master, and for his negligence the master is liable to a servant to whom the tool, machinery or appliance is subsequently delivered for use, and who, owing to such negligence, is subsequently injured thereby. It is also the duty of the master to exercise reasonable care to furnish a safe place for his employees to work, and whoever furnishes the completed place represents the master. We are not, however, prepared to hold that the master is liable for the negligent act of a foreman or ■ superintendent in inspecting or repairing machinery, tools or appliances, or in the work of making a place safe for his employees, where such negligent act results in direct, immediate injury to another servant, while the work of inspection or repairing or making the place safe is in progress. We are of opinion that the act of the superintendent, in opening this valve, was the act of a co-servant and not of the defendant, and as the evidence is undisputed, the jury should have been so instructed as matter of law. (Murphy v. Boston & Albany R. R. Co., 88 N. Y. 146; Bell v. Consolidated Gas Co., 36 App. Div. 243; McCosker v. Long Island R. R. Co., 84 N. Y. 77; Cullen v. Norton, 126 id. 1; Beilfus v. N. Y., L. E. & W. R. Co., 29 Hun, 556; Hussey v. Coger, 112 N. Y. 614 ; Kimmer v. Weber, 151 id. 419 ; Vitto v. Keogan, 15 App. Div. 329 ; Crispin v. Babbitt, 81 N. Y. 516.) It does not, however, follow that plaintiff cannot recover. If the master was negligent in not furnishing a reasonably safe place or in constructing the plant negligently, and such negligence co-operated with the negligence of the superintendent in turning the valve, the master would be liable. These exceptions present reversible errors and require a new trial, with costs to appellant to abide the event. Adams, P. J., concurred; McLennan and Williams, JJ., concurred in result; Spuing, J., dissented. Judgment and order reversed and new trial ordered, with costs to appellant to abide event.