Adams, J.:
Upon substantially the' same evidence as that furnished by the record now before us, it was held by the late. General Term in the fifth department that the case presented a question of fact respecting the .defendant’s negligence which should have been submitted to the j|ny; and because upon a former trial it Was withheld from the jury and a. nonsuit directed, a new'trial was ordered. (Crowell v. Thomas, 90 Hun, 196.)
This decision, while not necessarily conclusive-upon-this court, is nevertheless one which should not be lightly disregarded; and ye are quite content to follow the same in so far as it' holds' that the question of defendant’s negligence must be disposed of .as' one of fact and not one.of law. . '
[523]*523It is true that the contrivance which was employed by the defendant for furnishing hot water was an exceedingly simple one, and when used in the manner originally designed, a perfectly safe one. It is likewise true that the insertion of a plug into the escape pipe,, which converted a perfectly safe appliance into a dangerous one, was the act of a co-employee of the plaintiff’s .intestate, for which the defendant was in nowise responsible. And if these were the ' only facts to be considered upon this review, there would be great force in the contention that the defendant was not legally liable for the consequences of the explosion.
Unfortunately, however, for this contention, there are some additional facts in the ease which put quite a different. aspect upon it. It is claimed, and there is some evidence tending to show, that James K. Burlingame, the defendant’s superintendent and alter ego, might have prevented the accident had he been diligent in the discharge of the duty of inspection which doubtless rested upon him.
It appears that the steam had not been turned into the barrel since the strawberry season in June preceding the explosion, save on one occasion- early in July. It also appears that as this barrel stood upon the table its top was about six feet from the floor; that the escape pipe extended some six inches above the top of the barrel, and the plug some four or five inches from the escape pipé. It is quite obvious, therefore, that the plug, when inserted, was in plain view of any one standing upon the floor; and one witness, Philip Dougherty, testified that about a week prior to the accident he noticed the plug in the pipe. On the other hand, James K. Burlingame testified that he did not look for the plug, and that he had never seen it or known that one was used. It may be assumed, therefore, that his attention was not expressly directed to any danger which might be anticipated from the improper use of this particular contrivance. Nevertheless, as the defendant’s superintendent, he was undoubtedly charged with the duty of exercising some reasonable degree of diligence to ascertain whether this barrel, after remaining unused for such a length of time, was in a safe and propér condition for use on the morning in question. (Egan v. D. D., E. B. & B. R. B. Co., 12 App. Div. 556.)
Did he in this respect discharge the full measure of the duty [524]*524resting upon him ? It is. conceded that- he- turned on the steam the morning of the accident, and was standing near the barrel when it . exploded, and that ample opportunity was thus afforded him to have seen this .plug had he but cast his eyes upon the discharge pipe. It is also argued that, if he. had been at all mindful of the situation which confronted him, he would have noticed that no steam was escaping from the pipe, and that the barrel was affected by some unusual internal force. It is not denied that had he seen the plug he would have realized the increased danger, which its presence in the pipe caused, in time to have guarded against it, and yet he did not observe it. The crucial question, therefore, which the case presents is, whether, in the peculiar circumstances which have been • detailed, he ought to have observed it, and whether he was guilty of negligence in failing to do so.
This is a question concerning which persons of equally good judgment might differ in their answers; and, therefore, we think it one which was very properly submitted to the jury for their determination', and that their verdict should conséquently not be disturbed.
But, while satisfied with the disposition made of this question at the trial, we are constrained to reverse -the judgment and order appealed from, and to direct a new trial for errors which are presented by exceptions taken to certain portions of the charge of the court. The jury were instructed that James K. Burlingame stood in the place of the defendant, and that for any omission of duty upon his part the defendant was. liable. Thus far the learned trial justice was undoubtedly, .correct in his statement of the law applicable to the case, but this statement was followed by another which, we think, must have conveyed an erroneous impression to the minds of the jury, and one which was quite prejudicial to the defendant’s rights. This was in effect that, by placing either Buckley or Llewellyn.Burlingame in charge of this barrel and its appliances, James It. Burlingame delegated to them the same authority to represent the defendant as he himself possessed.
That there may be no misapprehension in respect to this feature of the case, we quote from the body of the charge the following language : “ I also charge you, gentlemen, if you should find from the evidence that if Mr. Burlingame directed Mr. Burke, the engi[525]*525neer (meaning, doubtless, Mr. Buckley), to take charge of the pipes and machinery, and if he put the plug in the pipe, knowing, or if he had reason to believe that it was dangerous to turn on steam while the plug was in the escape pipe, and he neglected to remove it, then the defendant would be liable. I also charge you, gentlemen, if you find from the 'evidence that Mr. Burlingame entrusted his brother (meaning Llewellyn Burlingame) with the management of this part of the machinery, or the barrel where the explosion took place, and that his brother stopped up the escape pipe; that is, if he did it acting under the directions and instructions of Mr. Burlingame, who was the superintendent in charge, and you find from the evidence that it was a negligent act, that it was an act that a man of reasonable prudence and caution ought to have known the effect the steam would have upon this barrel with a plug in the escape pipe, and he omitted to remove the plug, then he would be guilty of negligence, .and his act would be the act of the employer;. or, in other words, his act would be the act of the defendant.” -
When this was excepted to by the defendant’s counsel, the learned court further stated that he “left it to the jury to determine from the evidence whether Mr. Burlingame had charge of this machinery, whether he had charge of the employment and discharge of the servants, and if he did, and had charge of this machinery and directed some one to take charge of it, and that person put the plug in £his pipe, and knew or ought to have known the effect that it would have upon the barrel in case the steam was turned on when the plug was in the pipe, and that was a negligent act, then it was the act of the master.”
And later on, when requested to charge that any act of Mr. Buckley’s in interfering with the machinery which had been furnished by the master, in the way of putting this plug in the pipe, if he did put it in, would be the negligence of a co-employee, for which Mr.
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Adams, J.:
Upon substantially the' same evidence as that furnished by the record now before us, it was held by the late. General Term in the fifth department that the case presented a question of fact respecting the .defendant’s negligence which should have been submitted to the j|ny; and because upon a former trial it Was withheld from the jury and a. nonsuit directed, a new'trial was ordered. (Crowell v. Thomas, 90 Hun, 196.)
This decision, while not necessarily conclusive-upon-this court, is nevertheless one which should not be lightly disregarded; and ye are quite content to follow the same in so far as it' holds' that the question of defendant’s negligence must be disposed of .as' one of fact and not one.of law. . '
[523]*523It is true that the contrivance which was employed by the defendant for furnishing hot water was an exceedingly simple one, and when used in the manner originally designed, a perfectly safe one. It is likewise true that the insertion of a plug into the escape pipe,, which converted a perfectly safe appliance into a dangerous one, was the act of a co-employee of the plaintiff’s .intestate, for which the defendant was in nowise responsible. And if these were the ' only facts to be considered upon this review, there would be great force in the contention that the defendant was not legally liable for the consequences of the explosion.
Unfortunately, however, for this contention, there are some additional facts in the ease which put quite a different. aspect upon it. It is claimed, and there is some evidence tending to show, that James K. Burlingame, the defendant’s superintendent and alter ego, might have prevented the accident had he been diligent in the discharge of the duty of inspection which doubtless rested upon him.
It appears that the steam had not been turned into the barrel since the strawberry season in June preceding the explosion, save on one occasion- early in July. It also appears that as this barrel stood upon the table its top was about six feet from the floor; that the escape pipe extended some six inches above the top of the barrel, and the plug some four or five inches from the escape pipé. It is quite obvious, therefore, that the plug, when inserted, was in plain view of any one standing upon the floor; and one witness, Philip Dougherty, testified that about a week prior to the accident he noticed the plug in the pipe. On the other hand, James K. Burlingame testified that he did not look for the plug, and that he had never seen it or known that one was used. It may be assumed, therefore, that his attention was not expressly directed to any danger which might be anticipated from the improper use of this particular contrivance. Nevertheless, as the defendant’s superintendent, he was undoubtedly charged with the duty of exercising some reasonable degree of diligence to ascertain whether this barrel, after remaining unused for such a length of time, was in a safe and propér condition for use on the morning in question. (Egan v. D. D., E. B. & B. R. B. Co., 12 App. Div. 556.)
Did he in this respect discharge the full measure of the duty [524]*524resting upon him ? It is. conceded that- he- turned on the steam the morning of the accident, and was standing near the barrel when it . exploded, and that ample opportunity was thus afforded him to have seen this .plug had he but cast his eyes upon the discharge pipe. It is also argued that, if he. had been at all mindful of the situation which confronted him, he would have noticed that no steam was escaping from the pipe, and that the barrel was affected by some unusual internal force. It is not denied that had he seen the plug he would have realized the increased danger, which its presence in the pipe caused, in time to have guarded against it, and yet he did not observe it. The crucial question, therefore, which the case presents is, whether, in the peculiar circumstances which have been • detailed, he ought to have observed it, and whether he was guilty of negligence in failing to do so.
This is a question concerning which persons of equally good judgment might differ in their answers; and, therefore, we think it one which was very properly submitted to the jury for their determination', and that their verdict should conséquently not be disturbed.
But, while satisfied with the disposition made of this question at the trial, we are constrained to reverse -the judgment and order appealed from, and to direct a new trial for errors which are presented by exceptions taken to certain portions of the charge of the court. The jury were instructed that James K. Burlingame stood in the place of the defendant, and that for any omission of duty upon his part the defendant was. liable. Thus far the learned trial justice was undoubtedly, .correct in his statement of the law applicable to the case, but this statement was followed by another which, we think, must have conveyed an erroneous impression to the minds of the jury, and one which was quite prejudicial to the defendant’s rights. This was in effect that, by placing either Buckley or Llewellyn.Burlingame in charge of this barrel and its appliances, James It. Burlingame delegated to them the same authority to represent the defendant as he himself possessed.
That there may be no misapprehension in respect to this feature of the case, we quote from the body of the charge the following language : “ I also charge you, gentlemen, if you should find from the evidence that if Mr. Burlingame directed Mr. Burke, the engi[525]*525neer (meaning, doubtless, Mr. Buckley), to take charge of the pipes and machinery, and if he put the plug in the pipe, knowing, or if he had reason to believe that it was dangerous to turn on steam while the plug was in the escape pipe, and he neglected to remove it, then the defendant would be liable. I also charge you, gentlemen, if you find from the 'evidence that Mr. Burlingame entrusted his brother (meaning Llewellyn Burlingame) with the management of this part of the machinery, or the barrel where the explosion took place, and that his brother stopped up the escape pipe; that is, if he did it acting under the directions and instructions of Mr. Burlingame, who was the superintendent in charge, and you find from the evidence that it was a negligent act, that it was an act that a man of reasonable prudence and caution ought to have known the effect the steam would have upon this barrel with a plug in the escape pipe, and he omitted to remove the plug, then he would be guilty of negligence, .and his act would be the act of the employer;. or, in other words, his act would be the act of the defendant.” -
When this was excepted to by the defendant’s counsel, the learned court further stated that he “left it to the jury to determine from the evidence whether Mr. Burlingame had charge of this machinery, whether he had charge of the employment and discharge of the servants, and if he did, and had charge of this machinery and directed some one to take charge of it, and that person put the plug in £his pipe, and knew or ought to have known the effect that it would have upon the barrel in case the steam was turned on when the plug was in the pipe, and that was a negligent act, then it was the act of the master.”
And later on, when requested to charge that any act of Mr. Buckley’s in interfering with the machinery which had been furnished by the master, in the way of putting this plug in the pipe, if he did put it in, would be the negligence of a co-employee, for which Mr. .Thomas would not be liable, he added : “ That would be so, gentlemen, unless you find from the evidence that he was directed to take charge of. it by Mr. James K. Burlingame.” To all of which the defendant’s counsel duly excepted.
Thus it will' be seen "that the jury were permitted to find that the defendant was liable for the act of either Buckley or Llewellyn Burlingame, in placing the plug in the discharge pipe, provided either [526]*526one did so after having been placed in charge of the barrel by the superintendent.
It .seems to us that the proposition involved in the instructions of the learned court, to which attention has been made, is clearly .fallacious-in at least two respects. In the first place, the case is destitute of any evidence whatever tending to show that Buckley was ever placed in charge of this barrel. He was the defendant’s engineer, and his share of the responsibility for the accident which resulted from the improper insertion of this plug was voluntarily assumed by him without any direction from, or knowledge of, the superintendent.
So far as' Llewellyn Burlingame is concerned, it is undoubtedly the fact that he had more or less to do with the barrel in the performance of .the services which were, required of him. But it does not appear that' lie was ever called upon to exercise any supervisory duty in respect thereto which changed his relation from that of a servant to that of .the alter ego of his master. Assuming, however, that the duty - was imposed upon either or both of these persons to look after the barrel, and to see. to it that it was safely and properly.operated, that was but a mere detail of the business in which they were engaged, which by no means clothed them with the general powers and responsibilities, of the master, but, on the contrary, they still remained co-servants of the plaintiff’s intestate. And it follow's' that, if either of them inserted the plug and carelessly omitted to remove it, or if they or either of them' failed to observe' that,the steam was prevented from escaping by the presence of the plug, the act or omission, however negligent it may have been, was the act or omission of a co-servant, for which the, master was in nowise responsible. (Crispin v. Babbitt, 81 N. Y. 516; Loughlin v. The State, 105 id. 159; Vitto v. Keogan, 15 App. Div. 329.) A different rule, we are persuaded, would work.a radical change in the law of negligence, for there is scarcely a manufacturing establishment in the country in which various employees are not placed in charge of certain portions of the machinery in use. It is the duty of the engineer to take charge of his engine and. to see to it that it is properly managed ;. and if, owing to his mismanagement, an explosion-results by which another operative is injured, such omission" of duty is not chargeable upon the common master. (Crispin v. Babbitt, supra.) .
[527]*527In like manner, if a switchman leaves his switch open, in consequence of which a train is derailed and the fireman upon a locomotive is killed, the fact that the switchman was placed in charge of ,the switch does not change him from a servant to a master, but, like. the engineer in the case first mentioned, he retains the relation of co-employee. (Harvey v. N. Y. C. & H. R. R. R. Co., 88 N. Y. 481.)
It is hardly necessary, however, to multiply illustrations, nor will it prove profitable to further discuss the question under consideration. It is sufficient to say that, for the .errors which we have attempted to point out, we think, a new trial is rendered necessary, and, to that end, that the judgment and order appealed from should be reversed.
Judgment and order reversed and a new trial granted, with costs to abide the event. -
All concurred.
Judgment and order reversed and a new trial ordered, with costs to abide the event;