1.

The owner of a boiler does not perform his duty to the owner of adjoining buildings by merely employing competent persons to inspect and repair the boiler, but he must, in addition, see that they, as reputable mechanics, adopt a plan for the repairs, and carry it out.

2. The owner of a boiler is not liable to owners of adjoining property for injuries caused by its explosion through the negligence of persons selected by him to inspect and repair it, where the persons selected to do that work are competent, and he is not aware of negligence in the performance of the duty.

3.

The report of a boiler insurance

the defendant association, and, to that end,
they injured the plaintiffs in their business,
and molested and disturbed them in their HAYS
efforts to work at their trade. It is true,
they committed no acts of personal violence
or physical injury to property, although
they threatened to do something which
might reasonably be expected to lead to such
results. In their threat, however, there
was plainly that which was coercive in its
effect upon the will. It is not necessary that
the liberty of the body should be restrained.
Restraint of the mind, provided it would be
such as would be likely to force a man
against his will to grant the thing demand-
ed, and actually has that effect, is sufficient
in cases like this." In that case the injunc-
tion was awarded, as it was here. 1 Eddy,
Combinations, 416, says: "The courts rec-
ognize the right of workingmen to combine
together for the purpose of bettering their
condition, and, in endeavoring to attain
their object, they may inflict more or less
inconvenience and damage upon the employ-
er; but a threat to strike unless their wages
are advanced is something very different
from a threat to strike unless workmen who
are not members of the combination are dis-
charged. In either case the inconvenience
and damage inflicted upon the employer is
the same; but in the one case the means
used are to attain a legitimate purpose,
namely, the advance of their own wages,
and the injury inflicted is no more than is
lawfully incidental to the enjoyment of their
own legal rights. In the other case the
object sought is the injury of a third party;
and, while it may be argued that indirectly
the discharge of the nonunion employee will
strengthen and benefit the union, and there-

by indirectly benefit the union workmen,

the benefit to the members of the combina

tion is so remote, as compared to the direct and immediate injury inflicted upon the nonunion workmen, that the law does not look beyond the immediate loss and damage to innocent parties to the remote benefits that might result to the union."

And so, as already intimated, it comes simply to the question, Shall the law of an irresponsible trades union, or shall the organic law of a free commonwealth, prevail? We answer, every court of the commonwealth is bound to maintain the latter in letter and spirit.

The learned judge of the court below has so framed his decree that it is directed only against the unlawful acts. If there be disobedience or evasion of it, he thoroughly understands how to enforce it.

All the assignments of error are overruled, and the decree is affirmed, at costs of appellants.

company that its inspectors had made a proper inspection of a particular boiler is not conclusive evidence of that fact. 4. To relieve the owner of a boiler from liability for injuries to adjoining property by its explosion, on the ground that he committed its inspection to a boiler insurance company, he must show that the inspectors furnished by the company were competent, and that they properly inspected the boiler, and truthfully reported the result of their inspection.

5.

The owner of a boiler which has been out of repair is not liable to adjoining property owners for injuries caused by its explosion, if he selected competent persons to make the repairs, and subsequently secured an inspection by competent persons, even though the mechanics and inspectors did not perform their duty.

(October 12, 1903.)

PPEAL by defendant from a judgment of
the Court of Common Pleas for Erie

A
County in favor of plaintiff in an action
brought to recover damages for injuries
caused by the explosion of a boiler. Re-
versed.

The opinion of the court below in refusing a new trial, which is referred to in the opinion of the supreme court, and which was delivered by THOMAS, J., was as follows:

The sole reason urged upon argument for the granting of a new trial was that the court erred in charging the jury that the defendant company would be liable for the negligence of the persons employed to repair and to inspect the boiler, notwithstanding the fact that the officers of defendant company had exercised due care in the selection ⚫ of proper persons to perform these admitted duties. This contention ran throughout the

NOTE. For another case in this series as to liability for damages to neighbor by explosion of boiler on one's own premises, see Vieth v. Hope Salt & Coal Co. 57 L. R. A. 410.

to a servant for a man's own negligence or want of skill." Ardesco Oil Co. v. Gilson, 63 Pa. 146; Kilbride v. Carbon Dioxide & Magnesia Co. 201 Pa. 552, 88 Am. St. Rep. 829, 51 Atl. 347.

trial of the case, and was vigorously denied | cited by defendant, is that "there is no dif by plaintiff. Much evidence was admitted, ference between liability to a stranger and under objection, that looked to the usage of boiler makers and boiler users, in order that the entire case might be fully put on record, and the real difference as to the law applicable thereto met and determined. We have given the question considerable consideration, not only because of the earnest and able arguments of counsel, but because of the nature of the question involved and the consequence depending thereon, and shall discuss somewhat in detail the authorities|parently urged from some of the authoricited and others.

Defendant urges that "the unbending test of negligence in methods, machinery, and ap-| pliances is the ordinary usages of the business," and cites as authority therefor Titus v. Bradford, B. & K. R. Co. 136 Pa. 618, 20 Am. St. Rep. 944, 20 Atl. 517; Kilbride v. Carbon Dioxide & Magnesia Co. 201 Pa. 552, 88 Am. St. Rep. 829, 51 Atl. 347; Service v. Shoneman, 196 Pa. 63, 79 Am. St. Rep. 689, 46 Atl. 292, and Ford v. Anderson, 139 Pa. 261, 21 Atl. 18.

This is true as a legal proposition, but is not authority for the proposition that a stranger can only recover where a servant might for like injury, under like circumstances, which is the conclusion that is ap

ties cited. This language is explained or qualified in the case of Ardesco Oil Co. v. Gilson, as follows: Though "a master is not responsible for an injury to a servant by the negligence of a fellow servant, unless he has failed in ordinary care in the employment of the culpable party." Mindful of this qualification, and the further fact that, while a servant assumes the risk as to the negligence of his fellow servants who have been employed with due care, an injury by such a one negligently inflicted in the ordinary course of his employment upon a stranger, must be answered for by the master, let us examine the cases cited for the purpose of persuading us that the master is not liable for the result of the negligent act of his servant in not discovering and remedying the alleged defect, when given full authority so to do, and who was duly qualified and carefully selected for the work. The case most relied upon by defendant is that of Mansfield Coal & C. Co. v. McEnery,

With this principle we heartily concur; but this was not a case of showing the usage as to making the repairs or making the inspection, but one of showing a custom of delegating a duty by law imposed upon defendant. Had this controversy been as to the usage or nonusage of the business as to the manner in which the inspection was made, it might have been applicable; but we have no evidence as to how the inspection was actually made, excepting as to that made by the fireman, and no evidence what-91 Pa. 185, 36 Am. Rep. 662. The defendever that such inspection was such as is the custom among boiler users. It may have been applicable as to the methods adopted in putting on the patches, and as to whether the condition of affairs then existing should have suggested an internal examination. As to whether the shell of the boiler should have been removed when the patch was put on was a question to be determined by the method adopted by others under like circumstances, and evidence as to this was offered and admitted. As to whether such custom required that the boiler maker should make an internal inspection when he discovered the external existing conditions was a fact to be thus determined, and evidence thereof was admitted, and the question as to the same submitted to the jury.

We are persuaded that a custom to delegate a personal duty to another would no more relieve from failure to perform the same than would a universal custom of negligence, if one should be established, relieve from liability therefor.

Another proposition that is urged, and which is a basis for, and enters into, the question involved in most of the authorities

ants had employed a competent and experienced man to construct for them a bridge, the falling of which caused the death of McEnery, and suit was brought for the injury thus resulting, the same being based on defects in the original construction of the bridge. It appeared from the evidence that the bridge was in bad condition for some time prior to its fall; but there was no evidence that the defendants knew, or should have known, of that fact. The case was decided upon the ground that decedent was guilty of such gross negligence as to preclude recovery. The court does say, however, that, "if the defendants exercised ordinary care and skill in the selection of employees to construct the bridge, they would not be responsible for defects resulting from its original construction." This may be true as to the original construction of machinery or appliances, and that action was for negligence in original construction; yet the case turned on an entirely different point, and much evidence was given as to the bridge being out of repair, concerning which duty the court says: "If, however, the defendants had knowledge of such defects,

more especially if notice had been given to | ploy competent and skilful persons for the them thereof, and they had neglected to purpose of inspection, and afford them reamake the necessary repairs, they would be sonable opportunities and facilities for the responsible, not only to strangers, but even work under proper instructions, the comto one of their employees, provided he was pany will not ordinarily be liable for the not chargeable with concurring negligence, negligent performance of the work by their or want of proper care, or neglect of duty employees, to a fellow employee, unless the on his part." company knew, or by ordinary diligence ought to have known, of the defective manner in which the inspection was conducted. We are clearly of opinion, too, that a brakeman and a car inspector are in the same circle of appointment." Here it is again held that the defendant, having used due care in selecting employees, is not liable to coemployees for their negligence, but it is in no place held that such negligence is not the company's negligence under any circumstances and as regards strangers,—merely that plaintiff's relation to his fellow servants is such that he cannot recover.

The case of Lineoski v. Susquehanna Coal Co. 157 Pa. 153, 27 Atl. 577, was where a miner sought to recover from the owner for an injury received through the negligence of the mining boss, and it was held that the defense that defendant employed a mining boss as required by law, and had exercised due care in the selection of the boss, was good. This, it seems to us, is certainly in conformity with the law and decisions as to responsibility to servants for the acts of negligence of fellow servants. The mining boss is a fellow servant of the miners, and the care that the master must exercise as to said coservants is in making a proper selection. They then assume the risk of the neg-master owes to his employees the duty of ligence of their fellow servants, and the owner is thereby relieved. Strangers do not assume any such risks.

The case of Bemisch v. Roberts, 143 Pa. 1, 21 Atl. 998, is one where the defendant's liability was based on the absence of pins placed in a "buggy" to hold in place the iron loaded thereon. The "buggy" had been loaded by a fellow workman, and the absence of the pins was clearly visible, and, whether they were absent because of sheer negligence in not putting them in place, or because of the fact that the holes had become so worn as not to retain them, the negligence was either that of plaintiff or his fellow servant, and he was denied recovery on these grounds alone. It is true there was some testimony that defendants had provided a man whose duty it was to make such repairs, and this fact was commented on by the court, but it is nowhere held or intimated that that was

necessary, or relieved defendant from the necessity of making the repairs.

Martin v. Philadelphia & R. R. Co. 200 Pa. 603, was a case of an injury to a fellow servant, and holds no more than that, if there had been negligence on the part of a fellow servant in omission to inspect or report defects, the plaintiff could not recover. It is the old case of a man's being unable to recover, not because there was no negligence, but because he had, by virtue of his relations to the one guilty thereof, assumed the risk thereof.

Philadelphia & R. R. Co. v. Hughes, 119 Pa. 301, 13 Atl. 286, is another case where an employee of a railroad company sought to recover for the negligence of one held by the court to have been a fellow servant. The court says: "If, however, the company em

It seems to us that the cases cited by de fendant go no farther than saying that the

reasonable care in the selection of fellow workmen, and if an injury results to one from the negligence of his fellow employee he cannot recover from the master, not because the negligence is not the master's, when applied to persons in a different relation, but because it is a risk he assumed by his employment.

It is urged that our construction of the law makes the enployer the absolute insurer of the lives of employees. We think not. It only makes him responsible for the negligent acts of himself or his employees in and with reference to those duties he is by law obliged to perform, and, if he prefers to delegate any of those personal duties, he does it at his own risk, and not at the risk of others, excepting such others (as fellow servants) who have assumed the risk them

selves.

We think our interpretation of the law is fully warranted by the authorities, some of

which we shall refer to.

The general and broad proposition of law on this subject is better stated than we can hope to in 12 Am. & Eng. Enc. Law, 2d ed. p. 946: "The law imposes upon the master certain duties which concern the safety of his servants, and, while he may, of course, delegate the duties to another, his doing so in no wise affects his responsibility for their proper performance. If one servant is injured by reason of the negligent performance of one of these duties by another servant to whom it has been delegated by the master, the master cannot escape liability on the ground that the negligence was that of a fellow servant. In other words, where a servant is intrusted with the performance

of one of the master's personal duties, he is, | hands of an agent, exercising no discretion with respect to that duty, a vice principal and no oversight of his own, it is manifest or representative of the master, who will be that the neglect by the agent of ordinary liable to another servant for the negligent care in supplying and maintaining suitable performance by the vice principal of the instrumentalities for the work required is delegated personal duty to the same extent a breach of duty for which the master should as for his own negligence." be held answerable. The negligence of the agent with such powers becomes the negligence of the master."

In the case of Tissue v. Baltimore & Ohio R. Co. 112 Pa. 91, 56 Am. Rep. 310, 3 Atl. 667, it was held that the defendant company might be held liable for the negligent act of a superintendent of a particular piece of work, and who acted under the master of the road, in locating a dynamite magazine. In Lancaster Ave. Improv. Co. v. Rhoads, 116 Pa. 377, 2 Am. St. Rep. 608, 9 Atl. 852, it is held that, where a corporation for private emolument has expressly assumed certain public duties, it may not evade liability by showing that the injury resulted from the negligence of one employed to perform such duties.

In Lewis v. Seifert, 116 Pa. 628, 2 Am. St. Rep. 631, 11 Atl. 514, it is held that the duties the master owes to his employees, such as providing a reasonably safe place in which to work, and reasonably safe instruments, tools, and machinery with which to work, are direct personal and absolute obligations, and, if delegated to an agent, such agent stands in the place of his principal, who is responsible for his agent's.

is discharged when, and only when, "its and directs him to take charge of it when agents whose business it is to supply such done, and to repair it when necessary, the instrumentalities exercise due care as well negligence of such machinist is imputable in their purchase originally, as in keeping to the master." and maintaining them in such condition as to be reasonably and adequately safe for use by employees."