Losee v. Buchanan

61 Barb. 86, 1868 N.Y. App. Div. LEXIS 202

Opinion

By the Court, Potter, J.

The undisputed facts in this case may be thus stated: The defendants, “The Saratoga Paper Company,” was a corporation duly organized under the laws of this State, with three directors or trustees, two of whom were the defendants Coe S. Buchanan and Daniel A. Bullard, who," as such directors, had the active agency of organizing the said corporation, and had the management and control and chief conduct of the business of said corporation. The defendants located their mill for the manufacture of paper, at the village of Schuylerville, in the county of Saratoga, on a lot adjoining the premises of the plaintiff, on which the plaintiff had buildings, and a row or a series of buildings continuing along the same street, on various lots northerly, and nearly adjoining each other. That to conduct and carry on their manufacture of paper, the defendants procured and-had put into their said paper mill, a very large rotary iron boiler, which they used for boiling straw, preparatory to making it into paper. This boiler was seven feet in diameter, and nearly thirty feet in length; would hold nearly 3000 gallons of liquor, and with its fixtures, weighed about 27,000 pounds-. On the night of the 13th of February, 1864, this boiler exploded, and was cast and thrown, by the explosion, with its fixtures, northwardly upon and along the plaintiff’s premises, some 300 feet or mol-e, passing through and demolishing almost entirely, five or six buildings, stores, shops and dwellings of the plaintiff, on the easterly side of the street. The amount of damage was variously estimated by witnesses. .

It is proper here to say, that on the first trial of this action, which was before me, I held that in such case the plaintiff was not bound to show negligence on the part of the defendants to entitle him to recover his damages, and that proof by the defendants, of due care on their part, was not a defense. A verdict was rendered for the plaintiff against the corporation and the defendants Bullard and Buchanan. An appeal was brought upon the judgment so obtained, and upon the ground of my ruling, as above stated, the judgment was reversed, and a new trial ordered.

Upon the last trial, the judge held the law, as the general term had held it, that negligence was necessary to he provéd by the plamfjff, in such case, in order to entitle the plaintiff to recover; and evidence, both to prove and disprove negligence, was offered' by the respective parties and submitted to the jury ; and a verdict was found against the corporation only, and in favor of the defendants Bullard and Buchanan. From the judgment entered thereon the plaintiffhas appealed; and among other objections and exceptions taken on the trial, he has repeated the same question of law that was the ground of granting a new trial; to wit, “that where one is in the lawful possession and use of his own property, adjoining OAvners of land may not directly throw or cast, dirt, stones or other substances thereon, to his injury, and that the party so doing is liable for the injury occasioned, though he may at the time he pursuing a lawful occupation; and that negligence or Avant of skill need not be proved against the party who causes such an injury, to entitle the injured party to recover,” I held this proposition to be the law, on the first trial. I did not assent to a reversal of the judgment, on the ground that it was not the law; and a further consideration of the case has not changed my first convictions. A proper respect, however, to the opinions of my brethren who thought otherwise, compels me to yield obedience to their decision, if still insisted upon by them ; and to adopt their views of the law of this case, while it remains in this court. In justice, however, to myself, and that my views may not be misrepresented, if this case shall proceed fui’ther, I give as briefly as I may, the grounds of my opinion on the first trial, as well as at present. The plaintiff’s counsel has presented the point clearly before us, and insists upon its reconsideration, and asks a reversal of the judgment and ruling of the general term, in this respect.

In three distinct forms this proposition was ruled against by the judge, on the last trial; and on each occasion excepted to by the plaintiff’s counsel; once on the defendant’s request to nonsuit, on the converse of the proposition which the judge adopted; once on the request of the plaintiff to charge the jury that this proposition was law—which the judge refused; and once on the charge of the judge to the jury. These rulings, it is conceded, it was the duty of the judge to make, in obedience to the rule adopted at general term. If this is sound law, it is necessary either to distinguish this case from a series of adjudications long recognized to be the láw, in the courts of the highest authority of this State, and of England, or of overruling or entirely disregarding such cases. I am unable to make such distinction; and with my view of the law, it seems to me unbecoming to attempt to overrule or ignore their authority. The modern cases of Hay v. The Cohoes Company, (2 N. Y. 159, 161;) Tremain v. The Same, (Id. 163, 164,) and Radcliff’s Executors v. The Mayor of Brooklyn, (4 N. Y. 195, 210,) are striking cases of authority against the rule of the general term in this case. In the latter case, Bronson, J., who delivered the opinion of the court, and in which all concurred, cited the two former cases with approbation, and said, “one cannot rightfully enter, or cast anything on the land of another, unless he have license from the owner, or an authority in law for doing the act. And the absence of a bad motive will not save him from an action.” In Tremain v. Cohoes Company, on the .trial, in the court below, the defendants offered to prove that the work from which the injury proceeded, was performed'in the best and most lawful mannerbut the court excluded the evidence. In the Court of Appeals, in review of that question, Gardiner, J., with whose opinion the whole court agreed, said : “How the defendants performed their work was, in this view, of no consequence. What they did to the plaintiff’s injury, was the sole question. Upon that issue the evidence offered was calculated to mislead, instead, of enlightening the jury. We therefore think the court was right in excluding it.” Thfe issue in that case was the same as this. So in the case of Hay v. the same defendant, the same judge, speaking for the whole court, said : “ The plaintiff' was in the lawful possession and use of his own property. The land was his, and as against the defendant, by an absolute right. The'defendant could not directly infringe that right by any means, or for any purpose.” He also; in speaking of the facts of that case, said : “ The defendants had *a right to dig the canal; the plaintiffs to the undisturbed possession of their property. If these rights conflict, the former must yield to the latter, as the more important of the two,” &c. There is another class of cases relating to other matters, which are based on this same, and as I think,, universal principle of justice : That where one of two innocent parties must suffer loss, he who puts in motion the cause of the injury must bear the loss. This principle, and the principle of the cases above cited, is also recognized and approved in various decisions of the general term of the Supreme Court in other districts, especially in Farrand v. Marshall, (21 Bard. 419, &c.) In this case, Wright, J., holds the following language: “ The defendant can use his land, even to the destruction of the soil, for agricultural or building purposes, and the plaintiff has no right to control such use, so long as it does not directly infringe his right of domain, or the property ; but if the mode of use is destructive of this absolute right of the plaintiff, the law holds the defendant responsible, irrespective of the question of malice or negligence, for all damages resulting therefrom.” And he further says, “ that this principle lies at the foundation of a wisely regulated social organization. Without such restraint, a social organization can scarcely exist respecting the absolute rights of all its members, and protecting the property of each, and his enjoyment of such property in the soil.” He further says : “Let the principle prevail, that an individual may use his land, even though by the means of using it,' it renders insecure, or destoys, that of his neighbor; whilst it would be repugnant to natural justice, it would invade the relative rights of others, as understood and established by the common law.” Such were my views on the first trial of this cause. In my reading of the common law, these views had been strongly impressed upon my mind. I have since looked, somewhat, to see if I was mistaken. Going back to more ancient authority, I find that Blaelcstone says, that “ whenever an act itself is directly and immediately injurious to the person or property of another, and therefore necessarily accompanied with force, an action of trespass, vi et armis, will lie. This means, an entry upon another’s grounds without a lawful authority, and doing some damage to his real property. For, the right of meum and teum, or property in lands being once established, it follows as a necessary consequence, that this right must be exclusive; that is, that the owner may retain to himself the sole use and occupation of his soil, and every entry, therefore, thereon, without the owner’s leave, is a trespass.” (3 Black. Com. 209.) Puffendorf, a distinguished ancient writer on the law of nations, lays down this as the rule: “ In case a man be hurt or injured by another in any respect, the person who stands justly charged as author of the wrong ought, so far as lies in his power, to make reparation. For otherwise it would have been a vain command, ‘not to harm another/ if the party who actually suffers such harm, must be content to put up with it without further notice, and leave the offender to enjoy in peace, the fruit of his injury; never'obliging him to refund, or to restore. Furthermore, were not restitution made a necessary duty, neither would wicked men ever abstain from wronging others; nor would those who have been injured find it an easy task to compose their mind in such a manner, as to maintain peace with the other party, so long as they obtained no recompense or consideration for their sufferings.” (Book 3, ch. 1, § 2.)

The same writer gives the following instance, by way of illustration: “ It is clear, beyond the least doubt or dispute, that the owner of beasts stands responsible for those damages which they commit by their natural and accustomed violence, and the common force of their peculiar instincts. For the owner ought either not to keep such creatures, or carefully to restrain them from doing mischief.”

ifor was this less the common law of England, whose adjudications are quoted with approbation by our highest court, in the cases I have above cited. As long ago as the reign of Charles II, in the case of Lambert v. Bessy, reported by Sir Thomas Raymond, 422, 423, the following illustrations are given, as well as the principle upon "which the court based its decision. “In all civil cases, the law doth not so much regard the -intent of the actor, as the loss and damage of the party suffering.” In an action of trespass qu. cl. fre. upon six acres of land, the defendant pleaded that he had an acre lying beside the said six acres, and beside it, a hedge of thorns, and he cut the thorns, and they ipso invito, fell upon the plaintiff’s land, and the defendant took them off as soon as he could. It was held, that though a man doth a lawful thing, yet, if any damage do thereby befall another, he shall answer for it, if he could have avoided it, as if a man lop a tree, and the boughs fall upon another, ipso invito, yet an action lies. If I am building my own house, and a piece of timber falls on my neighbor’s house and breaks it, an action lies. If a man assault me, and I lift up my staff to defend myself, and in lifting it up hit another, an action lies, and yet, I did a lawful thing, and the reason of all these cases is, because he that is damaged ought to be recompensed. This common law, and law of nature, has never been overruled, or abrogated. We have no right, or power, to disregard it. If this rule applies to the case before us, our decision should be in harmony with it. We cannot, because we find cases in the books, which, reasoning from some supposed analogy, would seem to justify us in applying another rule to this case, ignore, or hold for naught the elementary law, and the cases cited. If the cases and authority I have cited ('supra) are authority, and the cases upon which the general term proceeded, are also authority, it is much better to see if they cannot be reconciled, than to hold the one for naught, and adopt the other, especially if the authorities overruled are directly analogous, while those adopted are not. I have found no difficulty in sustaining both as law, and clearly distinguishing between them. This view of the law, brings me to examine the point of distinguishing between this case, and that class of eases upon which the general term decided to grant a new trial. I entirely concur in most of the propositions laid down by the learned judge, in his able and elaborate opinion, which was adopted by a majority of this court, but I am compelled to dissent from the appropriateness of the authorities cited to sustain those propositions.

Take, for instance, the following propositions laid down in that opinion : 1st. Ho person can be held liable for an injury to the person or property of another, unless he is proved to be in fault. 2d. Before liability will attach, it must be shown, either that.the act was unlawful, or that it was performed in an unlawful manner. 3d. When the act itself is unlawful, a suit may. be maintained by the party injured thereby, without showing negligence,' or want of proper care. 4th. If, however, a person in the performance of a lawful act, cause an .injury to the. person or property of another, he is not liable, in the absence of all negligence.

I could adopt all these propositions, except the last, as perfectly consistent with the rule I have laid down ; at all events, they are not in conflict with that rule. The point is to determine what is lawful and unlawful. The difficulty with the opinion, is not so much with the propositions, as with the application to them, of a class of cases as authority to their support, which stands upon an entirely different principle. The first error, as I regard it, to be noticed in the very able opinion referred to, is the assumption that the act complained of was a lawful act, “on the part of the defendants,” and therefore, that care and skill on their part in its performance, was a defense, and various cases are cited to prove that proposition. This is entirely true in regard to a large class of cases, but it is not universally true, and as to another class of cases, as we shall show, it is not true; and the learned judge has failed to show the distinction between the two classes. It is true, as regards all that numerous class of ' cases where the party is acting under legislative authority,. as in injuries ‘occurring from the running of railroads ; by the acts of members of corporations, and others, who are authorized to grade and level streets, from which injuries .occur to adjoining land owners; and in all cases where power is conferred by the legislature, giving corporations authority to exercise the right of eminent domain. Such are the cases cited in Radcliff’s Executors v. The Mayor of Brooklyn, (4 N. Y. 204;) and the distinction I have referred to, is expressly recognized in that case; and the ground of the‘distinction, is, as was said by Lord Kenyon, in Governor &c. v. Meredith, (4 T. R. 796,) that “ where the legislature has authorized the act, though some individuals do suffer inconvenience or injury thereby, the interests of individuals must give way to the accommodation of the public.” This is the universal rule, unless the party or officer by whose act the injury is inflicted, exceeds his authority ; but this distinction is not noticed in the opinion I have referred to. But the contrary rule of law is just as well established; that if a private individual or corporation inflict an injury upon the adjoining land owner, they are liable for all damages consequent upon their acts, irrespective of the question "of negligence, or want of care and skill in constructing them.

This same rule was held in the more recent case of Bellinger v. The N. Y. Central R. R. Company, (23 N. Y. 42.) Denio, J., who delivered the unanimous opinion of the court, in that case, says, at .page 48: “ That point was conclusively adjudged in the case of Radcliff v. The Mayor of Brooklyn,” &c. (supra ;) and he adds: “.I might leave that point to stand upon that precedent, but (he further adds,) I think it may readily be shown that there is no well considered case having a contrary tendency.” In looking at the case of Radcliff v. The Mayor &c., cited by this distinguished judge, at page 199, the cases of Hay v. Cohoes Co., and Tremain v. The Same, and the case of Lambert v. Bessy," cited from Sir Thomas Raymond, are the authorities cited by him upon which the principle is sustained.

' So far as the proposition in the opinion of the learned judge, at general term in this case, is applied to cases in which the party is acting under legislative authority, it is sound, as to such cases; but not applicable to this, for the cases make the distinction, that in the performance of a lawful aet, if an injury is caused to the person or property of another, he is not liable, in the absence of all negligence ; but it goes no further; and that is not at all this ease.

The act complained of was performed under no legislative license, but alone upon the private enterprise of the defendants; nor can it be true that the casting of this boiler and fixtures upon the premises of the plaintiff was a law-r ful aet. It may not be denied that the manufacture of paper by the defendants, upon their own premises, ’by steam or other power, is a lawful act; but this act is not complained of; it was not this lawful act that occasioned the injury ; it was the unlawful act of directly thrusting this boiler upon the plaintiff’s premises, to the destruction of his property, that is complained of. Their acts were lawful while confined upon their own domain; but the means by which it was prosecuted was hazardous. The danger consequent upon using this machinery, at law, was not the plaintiff’s hazard, but their own. They put the dangerous machinery in motion; and the moment they entered upon the plaintiff’s quiet and peaceable possession with it, and destroyed his rightful possession of his own property, by a direct and immediate injury thereto, their act became an unlawful one; and they are responsible for its consequences, or, in the language of Puffendorff, “the owner ought either not to keep such creatures; or .carefully to restrain them from doing mischief;” or,, in the language of the cited cases, “ the law regards not so much the intent of the actor, as it does the loss and damage of the sufferer. It was the defendants who put this dangerous creature in in motion.” This view, then, brings the case within the proposition laid down by the learned judge at general term, which will create a liability—“ it was the performance of an unlawful act.”

A still later case in the Court of Appeals, repeats the rule that I have insisted is the true rule, applicable to this case. (Pixley v. Clark, 35 N. Y. 520, &c.) That action was to recover damages against the defendant, consequent upon building a mill-dam on his own land, by reason of which the plaintiff’s land was injured, not by being overflowed by the water in the dam, but by percolation of water through the plaintiff’s land, by which it was saturated and rendered worthless. The defendant showed himself a riparian proprietor; that he built the dam on his own land ; and did not overflow the plaintiff’s ; and that he built his dam with care and skill. The cases where ■ care and skill are a defense, were discussed in that case; but the court said, in answer to this argument, “ it is not true then, that the defendants must have ‘ carelessly ’ or ‘ unnecessarily ’ injured the plaintiff^ to enable him to sustain this action.” They say, however, “ the rule is different where one acts under authority of law.” This is an important distinction; it is not at all noticed in the opinion given at the general term. The court,'in the last cited case, further says : “ The act of the defendants was lawful in building their dam, so long as they did not injure their neighbor’s land; but the moment they so interfered by their dam as to flow his land to his injury, the act was unlawful; and they cited as authority the cases cited supra.

It is with great deference, and certainly only with the desire to place this decision upon the true ground, that I further review the learned opinion at general term. The learned judge, to sustain this opinion, cited, as he says, the familiar examples: 1st. Of burning fallows. (29 Barb. 419. 22 id. 619. 8 John. 421.) In the first cited case, the decision turned upon the question as to the liability of the employer for his servant’s act, and the recovery was set aside for some improper ruling of the judge, and the "question of negligence was not othévwise made a point in the case. So, too, in the second case, a recovery was set aside on the ground that the fire was communicated by an extraordinary wind. In the third cited case, there was no recover}’. The injury in these cases was not direct, hut |remote, and this creates another distinction to be observed, jthat in cases where the injury is not direct, negligence ‘must be proved. The ease cited, of collisions on highways and on the sea, are also clearly distinguishable from this, in that, in such cases, each party has equal rights to the same enjoyment of the highway or of navigation, and negligence, is necessary, therefore, to put one party in the wrong; not so in the case before us, where the defendant had no right on the plaintiff’s property. In the case cited from 3 East, 593, of collision on the highway, Lord Ellen-borough remarked: “If I put in motion a dangerous thing, as, if I let loose a dangerous animal, and leave the hazard to what may happen, and mischief ensue to any person, I am answerable in trespasswhich action formerly "only lay for immediate and direct injuries. Two cases are then cited, (5 Bosw. 576, and 2 E. D. Smith, 413,) which the learned judge thinks quite analogous to this. The first is an action for negligence by a railroad company, which we have already shown belongs to cases where the party is acting under authority of law, and the second is a .collision upon a highway, which we have just shown to be clearly distinguishable from the present. I have examined, with some care, the other cases cited in that opinion, and supposed by analogy to be controlling. I find them, however, to come either within the classes of cases which I have attempted to distinguish from this, or else I have failed to discover their application. Take the case cited front Lalor’s Supplement, 193. The principle laid down in that case is, that no liability results from the commission of an notarising from inevitable accident; or which ordinary human care and foresight are upablo to guard against. We look in vain for analogy between that ease and the present. Surely it was not impossible for the defendants to have avoided the injury, in this case. It was possible for human care to have kept this boiler from being used; it was not put there by inevitable accident, or against their will; all that case states, beyond this, is that under the special circumstances of that case, and of the charge of the judge, the jury found the defendant not in fault. Ho question of law was settled in the case cited.

I have dwelt upon this point at this unusual length, only because I am satisfied that this court erred in ordering a new trial; and because in a later case, decided in the court of highest authority, it seems- to be so held. If, however, my brethren adhere to their former ruling, I must, with due deference for the present, though against my judgment, hold the law of the case on this point, to be as they have decided, having placed myself according to my views in the case, fully upon record.

I proceed, then, to examine some of the other exceptions taken by the plaintiff on the last trial. The defendant Buchanan, at the end of the testimony, asked the court to charge the jury, that he was not liable for any negligence or unskillfulness on the part of “ the. Saratoga Paper Company,” or on account of the manufacturers of the boiler, and the court so charged the jury, and the plaintiff excepted. Whether or not, at law, negligence is necessary to be shown, to sustain the action, or is proper as a defense to it, I regard this ruling of the learned judge to be manifest error. Since the case of Phelps v. Wait, (30 N. Y. 78,) Í we are not permitted to question the rule, that a joint action will lie against principal and agent. Whether the act of the agent be in the absence of the principal, or the principal is a corporation that can only act by its agents, is not material. It is not possible to conceive of any act that a corporation can perform, to make itself liable, unaided by its agents. It has neither body nor mind, (its absence of [ a soul has long since been asserted and acknowledged.) It cannot put itself in motion to the injury of anybody. If injury accrues to any one by its action, it must be because its action is induced and directed by its agents. It eaninot, then, be a sound proposition to hold, in a case where /(an injury done by a corporation was occasioned by the negligence or unskillfulness of the agent who put the corpora tion in motion, that the inanimate corporation, and not the controlling agent, is liable. Had there been no evidence of the agency of Buchanan, it was properly the duty of the court so to hold ; but when there is evidence, and strong evidence, so that a question remains for the jury, the error is clear; it virtually holds that an agent is not liable for an act performed by his own negligence ; and I think it a still greater fallacy to hold that the principal agents may escape liability if the injury occurs at a time when their sub-agent or deputy, whom they employ to conduct their affairs, happens to be in charge; or that,,in such case, the corporation only is liable. We must look at this charge or ruling of the learned judge in the light of the facts of the case, as they appeared when the decision was made in the hearing of the jury. It was then in evidence, that the defendant Buchanan was one of the three directors of this corporation; that he was a stockholder of the company; that he and his co-defendant Bullard, had had the control, management and direction of the manufacture of paper, by means of the boiler that exploded; that Buchanan was an officer of the companythat the boiler whose explosion occasioned (the injury, as to size and form, and material, was ordered and directed by him; and that it was of larger dimensions than any ever before known; there was much evidence, and by some experts in the science, to show that the explosion was occasioned by the extraordinary size of the boiler; that he assisted or directed its being put in, and gave directions as to its operation; that he had experience as a paper maker, and in the use of boilers, and that he had some knowledge of their defective character before they were put in. To hold, in general terms, as matter of law, that he was not liable for negligence or unskillfulness, on the part of the “paper company,” when the jury might have found from the evidence above alluded to, that the unskillfulness or negligence of the paper company was by reason of his act, is surely error.

If it were possible that unskillfulness or negligence could be committed by the corporation, not directed by its agents, the rule held might be plausible. It was for the jury to say whether the act was induced,' directed or occasioned by the act of this particular agent, for agent he certainly was. I do not find anything in the subsequent charge that nullifies, destroys or explains this ruling.

The defendant then requested the court to charge some' ten various propositions, (and this seems to include all of ' the defendants,) which the court charged as requested, and to which this plaintiff excepted.

I how propose to notice the-last only. I may premise, by saying, that one Goddard was the engineer of the defendants, who had the immediate charge of the boiler which occasioned the injury.

The tenth proposition which the defendants asked the judge to charge, was as follows: “ That if the jury found from the evidence, that Goddard came to the conclusion that to reduce the pressure from 120 to 110 (pounds to the square inch) would render the ‘use of the boilers prudent and safe, and communicated that idea to Bullard, he (Bullard) was not liable.” This proposition the court charged. ‘

Unless we can look elsewhere than to this proposition for some explanation or modification of the ruling of the learned judge, it is also clearly error. There had been evidence then given in the case, tending to show negligence and want of skill on the part of the defendant Bullard, as well as of his knowledge of the dangers to be anticipated from the boiler in question; all of which evi dence' it was proper that the jury should consider, as to the fixing negligence upon him, Bullard; but this proposition, in its terms, as charged, would take from the jury that consideration, and entirely exonerate Bullard from all want of care and skill in all else that he had done, if the jury should believe that Goddard had told him it would be safe to reduce the pressure ten degrees. The proposition does not even require that Bullard should have believed what Goddard told him. Indeed he may have disbelived Goddard; he may have had other actual knowledge of danger; his own carelessness, in other respects, might have satisfied a jury of his liability; and yet the proposition exempts him from all liability if Groddard told him that, in his opinion, it would be safe if the pressure was reduced to 110.

fA party liable for negligence on his own account, cannot, by such an expedient, create a defense for himself, by obtaining an expressed opinion from his fellow employee. A Good defenses, I think, are' not quite so cheap as this.

As a defense of this tenth proposition, however, it is claimed that it should be read in connection with the ninth or next preceding proposition in the following words: “ That if Goddard told Bullard that it would be prudent to run them (the boilers) at 110, and if Bullard believed that, and acted upon it, then he was not liable.” The only difference between these propositions, then, is this, • that by the ninth proposition the judge charged that if Bullard believed Goddard, then he was not liable. I think this was equally error with the other. Bullard’s whole conduct, in all that he did, was to be judged of by the jury. The question was whether, in their opinion his acts, showed him guilty of negligence or want of skill; not whether he believed what Goddard said, and if he did, that all other acts would be excused.

Besides, these propositions were several and separate •; they were so ruled upon; were short, clear and distinct; could be easily comprehended and understood by the jury; and were clearly ruled upon by the judge, and if in themselves erroneous, they were calculated to mislead, and may have misled the jury.

It is also urged by the defendants, that these propositions are to be considered in connection with the subsequent charge of the judge at the folios named in the case, as follows:

1st. If you come to the conclusion that the explosion was produced by either or all of these circumstances, that is, all the defendants’ acts, and conduct, and knowledge, and that the defendants had knowledge of the facts, then they are chargeable with the damage the plaintiff has sustained.

2d. Or, if you should believe that the indications of weakness (of the boiler) were such as to require the foreman to stop the boiler and inquire what the defect was, but that he did not do so, then you have a right to say that the defendants are liable for his acts.

3d. And you have a right to say whether Bullard was chargeable with the use of that boiler or not, after Groddard had told him it was not prudent to use it at over 110.

The first of these latter propositions I regard as sound. It is found, however, in the middle of a long charge; it refers to many of the circumstances claimed to be negligence on the part of the defendants; but does it follow that a jury, who had previously been erroneously instructed upon a short and distinct proposition, which they must have comprehended and understood, could or did, in the midst of a long charge, apply this sound and qualifying proposition to the prior unsound one? And if the two propositions are in conflict, is it not more probable that the minds of the jury were confused thereby, tha.n that they had the power to apply, and did apply, the proper qualifications? The second and third of these qualifying propositions in the charge, I regard also as sound, and can only apply to them the same remarks as to their effect upon the jury, as I have to the first.

There is one other point in the ruling of the léarned - judge on the trial, which I think was error. The plaintiff requested him to charge, “ that the defendants cannot excuse or justify themselves in the use of the boiler in question, on the ground that the same was purchased of reputable manufacturers.” Added to this proposition, the counsel gave reasons at some length, but they do not change the effect of the proposition. The judge refused so to charge, and the plaintiff excepted. This was a proper request to be made; because the defendants had been permitted to prove that the boilers had been manufactured by men of reputation and skill; and this was doubtless proper evidence to be considered by the jury, as tending to show care on the part of the defendants; but it had also been proved, to rebut this, that the size, form and character, and material of the boilers had been directed and ordered by the defendants. If the jury should believe this last evidence, then the manufacturers had no responsibility as to the character of the boilers; and their character as manufacturers was not in question, and had no influence or weight to be considered; for they built them as they were ordered by the defendants; and yet, the charge of the learned judge, in effect, was, that the purchase of these boilers from manufacturers of high reputation, was an excuse or justification to the defendants in the use of- these boilers. This, surely, was error.

If I am right in my views as to any one of these propositions that I have discussed, there should be a reversal of the judgment, and a new trial ordered, with costs to abide' the event. If my brethren should hold to my individual views upon the first proposition, based upon later and more applicable views of the law in the Court of Appeals, then, upon that ground alone, the judgment should be reversed. I have discussed the other propositions upon the assumption that they would adhere to their former opinion, that negligence is to be proved against the defendants to entitle the plaintiff to recover; or.that, at all events, care and skill proved by the defendants, constitute a j ustification and defense. Upon the whole case, whether the former opinion be sustained or not, I think a new trial should be ordered.

[Warren General Term, July 14, 1868.

The majority of the court concurred with Justice Potter in granting a new trial, upon the grounds last discussed; but they did not concur with him that the defendants were liable without proof of negligence.

New trial granted.

James, Bodies, Bosekrans and Potter, Justices.]