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In Mann v. Delaware & H. Canal Co. 91 N. Y. 495, it is held, "in view of the doctrine now firmly settled in this state, that no duty belonging to the master to perform for the safety and protection of his servants can be delegated to any servant of any grade, so as to exonerate the master from responsibility to a coservant who has been injured by its nonperformance. The

servant, as it is sometimes put ([Wright v. | chase and providing of machinery, to servNew York C. R. Co.] 25 N. Y. 565), or his ants and agents; but the duty to use reasonimplied contract with his servant, as it is able care in performing these acts always differently intimated (Farewell v. Boston & remains the duty of the master, and negliW. R. Corp. 4 Met. 49, 38 Am. Dec. 339),gence in performing it is his negligence, leads to another conclusion. That duty or whether he acted himself or by others. If contract is to the result that the servant the immediate negligence in these cases is shall be under no risks from imperfect or that of an agent or servant, and a coservant inadequate machinery, or other material is injured thereby, the law imputes the means and appliances, or from unskilful or negligence to the master, and the master is incompetent fellow servants of any grade. liable the same as if the injury had been It is a duty or contract to be affirmatively sustained by a stranger.” and positively fulfilled and performed. And there is not a performance of it until there has been placed for the servant's use perfect and adequate physical means, and for his helpmeets fit and competent fellow servants; or due care used to that end. That some general agent, clothed with the power, and charged with the duty, to make performance for the master, has not done his duty at all, or has not done it well, neither shows a per-duty to use due care in the selection of comformance by the master, nor excuses the master's nonperformance. It is for the master to do, by himself or by some other. When it is done, then, and not until then, his duty is met, or his contract kept. . . It is not enough to satisfy the affirmative duty or contract of the master that he selects one, or more than one, general agent of approved skill and fitness. If the general agent goes forward and care-and the duties referred to in the rule cited lessly places by the side of a servant another unskilled and incompetent, the duty of the master has not yet been met; his contract is yet unperformed."

In Flike v. Boston & A. R. Co. 53 N. Y. 549, 13 Am. Rep. 545, the court says: "The true rule, I apprehend, is to hold the corporation liable for negligence or want of proper care in respect to such acts and duties as it is required to perform and discharge as master or principal, without regard to the rank or title of the agent in trusted with their performance. As to such acts, the agent occupies the place of the cor poration, and the latter should be deemed present, and consequently liable for the manner in which they are performed. If an agent employs unfit servants, his fault is that of the corporation, because it occurred in the performance of the principal's duty, although only an agent himself. So, in providing machinery or materials, and in the general arrangement and management of the business, he is in the discharge of the duty pertaining to the principal."

petent servants is one of the master's duties. The duty of selection, in case of corporations, must be delegated. But any negligent act or omission in its performance is the act or omission of the master."

And again, in Bushby v. New York, L. E. & W. R. Co. 107 N. Y. 374, 1 Am. St. Rep. 844, 14 N. E. 407, the court holds: "Personal negligence is the gist of the action,

are those of the master, and he cannot evade the responsibilities incident thereto by delegation of them to another. Whoever does the act by his appointment or permission represents, and, as to that act, is, the master. To hold otherwise would exempt a corporation from all liability, and we must at the outset determine to which of the acts the one complained of belongs."

The last case we refer to (Fuller v. Jewett, 80 N. Y. 46, 36 Am. Rep. 575) is one not unlike the one at bar, saving that the person seeking to recover for injuries received was the representative of a deceased servant of defendant. The facts in this case were that plaintiff's intestate, an engineer on the Erie Railway, was killed by the explosion of the boiler of a locomotive engine. It was alleged that the cause of the explosion was the defective condition of the boiler, which had been turned over to the company's master mechanic for repairs. The master mechanic gave directions for its thorough overhauling, and the repairs were made by mechanics in the employment of the company, "competent from their character and experience" to perform this duty.

In Booth v. Boston & A. R. Co. 73 N. Y. 38, 29 Am. Rep. 97, it is said: "From the nature and extent of the particular business, or the fact that the principal is a corporation and can only act through agents, These mechanics examined the boiler, but it may be necessary for the master to com- such examination "was substantially conmit the selection of servants, and the pur-'fined to an inspection of the outer sheets

of the boiler, to discover any indication of weakness, and to hammering on some of the bolts to ascertain whether they were broken. But they made no examination of the interior of the legs of the boiler by the use. of lights as was practicable and usual in case of general repairs, as some of the witnesses testified." It was found that plaintiff's intestate's death was due to the negligence of the mechanics to whom the doing of the repairs was intrusted, and the court held the defendant responsible for such negli gence, Andrews, J., saying: "We understand the principle of these cases to be, that acts which the master, as such, is bound to perform for the safety and protection of his employees, cannot be delegated so as to exonerate the former from liability to a servant who is injured by the omission to perform the act or duty, or by its negligent performance, whether the nonfeasance or misfeasance is that of a superior officer, agent, or servant, of a subordinate or inferior agent or servant, to whom the doing of the act, or the performance of the duty has been committed. In either case in respect to such act or duty the servant who undertakes, or omits, to perform it is the representative of the master, and not a mere coservant with the one who sustains the injury. The act or omission is the act or omission of the master irrespective of the grade of the servant whose negligence caused the injury, or of the fact whether it was or was not practicable for the master to act personally, or whether he did or did not do all that he personally could do by selecting competent servants, or otherwise to secure the safety of his employees."

This would seem to be decisive of the case at bar, providing that this is the law of this commonwealth, and we think it is. The case is based to a great extent on the authority of Ford v. Fitchburg R. Co. 110 Mass. 240, 14 Am. Rep. 598, which was chiefly relied upon in our own case of Pennsylvania & N. Y. Canal & R. Co. v. Mason, 109 Pa. 296, 58 Am. Rep. 722.

After a careful consideration of the foregoing authorities and the general law of liability for negligence upon which they are based, we feel confident that, if the plaintiff in this case sustained his injury through the negligence of the persons employed by dedefendant company to inspect or repair their boiler, even though the company, through its officers, exercised due care in the selection of such persons for those purposes, the company is liable for the consequences of said negligence, and the rule is discharged; and a new trial is refused.

Messrs. Frank Gunnison and T. A. Lamb, for appellant:

The defendant owed the plaintiff no contractual duty.

Ardesco Oil Co. v. Gilson, 63 Pa. 146; Kil bride v. Carbon Dioxide & Magnesia Co. 201 Pa. 557, 88 Am. St. Rep. 829, 51 Atl. 347.

The proprietor of a manufacturing or other plant, in which he has a steam boiler, is bound in the matter of repairs to and inspection of the same to the same extent, and no further, as he is in the original purchase. If he contracts the repairs of the boiler to a competent and reliable boiler maker, and the inspection of it to competent and reliable inspectors, being unskilled himself, he ought not to be liable for improper or negligent performance on their part, if he is guilty of no negligence himself.

Philadelphia & R. R. Co. v. Hughes, 119 Pa. 301, 13 Atl. 286; Martin v. Philadelphia

R. R. Co. 200 Pa. 603, 50 Atl. 193; Bemisch v. Roberts, 143 Pa. 1, 21 Atl. 998; Lineoski v. Susquehanna Coal Co. 157 Pa. 153, 27 Atl. 577; Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185, 36 Am. Rep. 662.

When a man adopts the methods of those who are engaged in the same business, he cannot be charged with negligence in respect to those methods.

The law does not impose unreasonable conditions upon any person, in any line of business.

Titus v. Bradford, B. & K. R. Co. 136 Pa. 618, 20 Am. St. Rep. 944, 20 Atl. 517; Ford v. Anderson, 139 Pa. 261, 21 Atl. 18; Service v. Shoneman, 196 Pa. 63, 79 Am. St. Rep. 689, 46 Atl. 292; Kilbride v. Carbon Dioxide & Magnesia Co. 201 Pa. 552, 88 Am. St. Rep. 829, 51 Atl. 347; Fick v. Jackson, 3 Pa. Super. Ct. 378; Augerstein v. Jones, 139 Pa. 183, 23 Am. St. Rep. 174, 21 Atl. 24; Reese v. Hershey, 163 Pa. 253, 43 An. St. Rep. 795, 29 Atl. 907; Kehler v. Schwenk, 144 Pa. 348, 13 L. R. A. 374, 27 Am. St. Rp. 633, 22 Atl. 910; 27 Am. & Eng. Enc. Law, p. 902.

Messrs. John S. Rilling, Henry E. Fish, C. L. Baker, and Clark Olds, for appellee:

There being abundant evidence to support a finding that the defect from which the accident arose was known, or might, by the exercise of reasonable diligence, have been known, by the defendant in time to have pre vented it, the case was properly submitted to the jury.

65.

Walbert v. Trexler, 156 Pa. 112, 27 Atl.

When the defendant company discovered the leaks in the boiler, it became its duty to repair it, and to exercise ordinary care in doing so, and if it delegated that duty to

the Hauers, and they were negligent, the company was responsible for such negligence.

Dean, J., delivered the opinion of the

court:

The defendant is a manufacturing corLevis v. Seifert, 116 Pa. 628, 2 Am. St. poration engaged in the manufacture of Rep. 631, 11 Atl. 514; Smith v. Hillside brass and plumbing goods at Erie, PennsylCoal & I. Co. 186 Pa. 28, 40 Atl. 287; Penn-vania. In the year 1890 it purchased from sylvania & N. Y. Canal & R. Co. v. Mason, a reputable manufacturer of steam boilers 109 Pa. 296, 58 Am. Rep. 722; Bier v. Standard Mfg. Co. 130 Pa. 447, 18 Atl. 637; McGuigan v. Beatty, 186 Pa. 329, 40 Atl.

490.

The performance which will relieve the owner is performance of the actual work of repair and inspection.

of the boiler.

The

a kind of boiler in general use, and put it in place in its plant. In January, 1901, while in use, a leak was noticed in the shell The manager, who was also vice president of the manufacturing corporation, had not the mechanical knowledge or skill requisite to the inspection or repair of the boiler. Therefore he employed a competent boiler maker to inspect and his best judgment, put a patch over the make the necessary repairs. He, acting on place of the leak on the outside of the boiler, in the manner usually adopted to repair such leaks. In July following a second, but smaller, leak showed itself at the edge of the patch. As before, the vice president of the company employed a skilful boiler maker to repair it, instructing him to make proper repairs. He put on a second patch covering the new leak and extending partly over the first patch, thoroughly tested his work, believed that it was strong and had accomplished its purpose. The boiler remained in seemingly good condition until October 9, 1901, when it exploded. manufacturing company had the boiler insured by a responsible boiler insurance company doing a large business, not only in Erie, but throughout the country. The in144surance company, by inspectors, examined all boilers insured by it four times a year. These inspections extended to an external and internal examination of the boilers. The last examination of the boiler by the agents of this company was on August 18, 1901, two months before the explosion. It then, in substance, reported to defendant that from the result of the company's examination the boiler was in good condition. After the explosion it was discovered that in all probability the boiler could not have been in good condition at the date of the last inspection and for some time before. There was what is called a "groove" on the inside, caused by increase and reduction of pressure incident to the use of steam. The evidence showed that grooves or cracks in boilers are not unusual, but that a groove of the extent of this one was very rare. There was considerable testimony that a thorough examination of the boiler at the time the second leak was repaired, or subsequently when the insurance company inspected it, could not have failed to disclose this groove, with a consequent condemnation of the boiler. The plaintiff was an adjoining hotel

12 Am. & Eng. Enc. Law, 2d ed. p. 946; Mullan v. Philadelphia & S. Mail S. S. Co. 78 Pa. 25, 21 Am. Rep. 2; Pennsylvania & N. Y. Canal & R. Co. v. Mason, 109 Pa. 296, 58 Am. Rep. 722; Tissue v. Baltimore & O. R. Co. 112 Pa. 91, 56 Am. Rep. 310, 3 Atl. 667; Lancaster Ave. Improv. Co. v. Rhoades, 116 Pa. 377, 2 Am. St. Rep. 608, 9 Atl. 852; Lewis v. Seifert, 116 Pa. 628, 2 Am. St. Rep. 631, 11 Atl. 514; Smith v. Hillside Coal & I. Co. 186 Pa. 28, 40 Atl. 287; McGroarty v. Wanamaker, 187 Pa. 132, 40 Atl. 820; Ricks v. Flynn, 196 Pa. 263, 46 Atl. 360; Union P. R. Co. v. Daniels, 152 U. S. 684, 38 L. ed. 597, 14 Sup. Ct. Rep. 756; Hough v. Texas & P. R. Co. 100 U. S. 213, 25 L. ed. 612; Northern P. R. Co. v. Herbert, 116 U. S. 642, 29 L. ed. 755, 6 Sup. Ct. Rep. 590; Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 37 L. ed. 772, 13 Sup. Ct. Rep. 914; Fuller v. Jewett, 80 N. Y. 46; 36 An. Rep. 575; Rogers v. Ludlow Mfg. Co. Mass. 198, 59 Am. Rep. 68, 11 N. E. 77; Northern P. R. Co. v. Peterson, 162 U. S. 346, 40 L. ed. 994, 16 Sup. Ct. Rep. 843; Lannen v. Albany Gaslight Co. 44 N. Y. 459; Laning v. New York C. R. Co. 49 N. Y. 521, 10 Am. Rep. 417; Flike v. Boston & A. R. Co. 53 N. Y. 549, 13 Am. Rep. 545; Booth v. Boston & A. R. Co. 73 N. Y. 38, 29 Am. Rep. 97; Mann v. Delaware & H. Canal Co. 91 N. Y. 495; Bushby v. New York, L. E. & W. R. Co. 107 N. Y. 374, 1 Am. St. Rep. 844, 14 N. E. 407; Ford v. Fitchburg R. Co. 110 Mass. 240, 14 Am. Rep. 598; Moynihan v. Hills Co. 146 Mass. 586, 4 Am. St. Rep. 348, 16 N. E. 574; International & C. N. R. Co. v. Kernan, 78 Tex. 294, 9 L. R. A. 703, 22 Am. St. Rep. 296, 14 S. W. 668; Nord Deutscher Lloyd S. S. Co. v. Ingebregsten, 57 N. J. L. 400, 51 Am. St. Rep. 604, 31 Atl. 619; Belleville Stone Co. v. Mooney, 60 N. J. L. 323, 38 Atl. 835.

The test of liability is not the fitness of the engineer, "but the efficacy of the work." Lion v. Baltimore City Pass. R. Co. 90 Md. 266, 47 L. R. A. 127, 44 Atl. 1045.

keeper, whose property was seriously dam- | must be assumed from the evidence that the aged by the explosion. Alleging that his duty of examination was committed to both injury was caused by the negligence of de- sets of men by the defendant. It is also fendant in not providing and maintaining clear that the manager and officers of dereasonably safe machinery in and about its fendant company, not being boiler makers manufacturing premises, he brought this or mechanical experts, could not have examsuit for damages. The court below sub- ined and judged for themselves. Considermitted the evidence, on the question of de- ing their ignorance of the subject, having fendant's negligence, to the jury. They no knowledge on which to base a correct found against defendant, and from the judg- judgment, it would have been recklessness ment entered on their verdict we have this if they had attempted to perform a duty for appeal. which they were manifestly incompetent. It Although there are eight assignments of was their duty to do as they did,-employ error, we concern ourselves only with the others who were competent to perform that second and third, for they involve all of sub- duty. The evidence seems to show beyond stance of which appellant complains. De- dispute that they did employ competent fendant's counsel in their fourth written men; that is, competent so far as knowledge, point asked the court to charge the jury mechanical skill, and ordinarily acute perthus: "That the undisputed evidence show- ceptions are concerned. There may have ing that the defendant committed the repair been neglect by one or more or all of these of the boiler in question in January, 1901, men; that is, neglect to observe what would to Charles Hauer, and in July, 1901, com- have been obvious to them if a reasonably mitted the repair of said boiler to Fred careful examination had been made. Should Hauer, Jr., and that the said Charles Hauer this neglect be imputed to defendant? That and Fred Hauer, Jr., were competent boiler is the question involved in the two written makers, the defendant exercising no super-requests quoted, the answers to which are vision or giving no directions as to how said complained of as error. Not only did the repairs should be made, the defendant is not court refuse to announce the law as prayed responsible for any error in judgment or for, but affirmatively instructed the jury negligence upon the part of the said Charles in the general charge thus: "We say to Hauer or Fred Hauer, Jr., or either of you as a matter of law in this commonthem." Answer: "Refused." In their wealth, when the defects existed and those fifth written point they ask the court to cracks (leaks) were discovered, it was the charge the jury thus: "The undisputed evi- duty of the owners and operators of that dence showing that the defendant had its boiler to repair it, and their duty to exerboiler insured by the Hartford Steam Boiler cise ordinary care in making their repair, Inspection & Insurance Company, that the and that that was a duty they could not boiler was inspected periodically the in- delegate to Charles Hauer nor Fred Hauer, spectors of said company, that the defend- nor anybody else. That if they did so, and ant relied upon such inspection together Fred Hauer or Charles Hauer were negliwith the monthly overhauling of the boiler gent, the company is responsible for that and cleaning it out by the regular employee negligence. This is also true with reference of defendant, and that it is a common usage to the inspection." Technically, there was among boiler users and manufacturers in no error in peremptorily negativing the two and about the city of Erie to rely upon the written points as quoted, for defendant asinspection of boiler inspectors of boiler in- sumed facts in them which were for the surance companies, that the defendant had jury to pass upon. True, the weight of the a right to rely upon such inspections to de-evidence would seem to have established the termine the safety of its boiler, and is not facts as claimed in the points, but the credliable for any error in judgment or negli-ibility of the two Hauers and Hitchcock, gence in the inspection of such boiler by the said inspectors." Answer: "This point is refused."

There was sufficient evidence to show that the groove in the boiler was there for months before the explosion; that it was there before the repair of the second leak; that it was there before the last examination of the insurance company's inspectors. Further, there was ample evidence from which the jury could have found that a reasonably thorough examination would have disclosed to the boiler repairer or the boiler inspector its dangerous condition. It

the vice president, who, it was alleged, employed them to repair the boilers, and gave them their instructions, and to some extent undertook to see that his instructions were carried out, was for the jury. It was the duty of defendant, acting by its officers, to employ competent mechanics to make the repairs, to exercise reasonable care in ascertaining their competency, and then to see to it that they did the work intrusted to them; that as reputable machinists and skilful workmen they adopted a plan for the repairs, and carried it out. Of course, further than this he could not go. He had

neither the knowledge nor the skill requisite to enable him to determine whether a proper inspection had been made by the men he employed, whether they had adopted the right plan or adopted the right method to carry it out. It was not his duty to bring to the performance of the work personal mechanical skill and the knowledge of an expert; but his duty was more than, mere perfunctory employment of two mechanics to do a certain job of repairs. It was that of an employer having in charge a powerful force, dangerous to his employees and the neighborhood unless reasonable care was exercised in keeping it in a proper condition of repair. He was bound to know, either from the observation which a nonexpert could make, or from the reports of the mechanics themselves, that the work required of them had been done. In other words, he was not absolved from all further duty of reasonable care by the mere employment of two mechanics to do the work. The duty of general supervision of the work by the employer to the extent noticed still continued. The same may be said of the work of the insurance company inspectors. On August 18th-about two months before the explosion-J. P. Swain, inspector for the company, makes report to defendant that after inspection "internally there is considerable scale at rear end of boiler. Heads, tubes, and shell plates show no defects." The report then goes on to make suggestions for additions to the boiler attachments and connections, but gives no hint that it needs repairs. It is probable from the risk assumed by the insurance company that their inspectors were competent, and performed their work with care, but the inspectors themselves were neither called nor sworn. What examination they made appears only from this report to defendant by one of the company's officers. It seems to say an internal examination of the boiler was made; also an external one only two months before the explosion; and that there were no defects to be repaired. There was considerable evidence on the part of plaintiff that, if a proper internal examination by entrance through the manhole into the boiler had been made, the large groove or crack to which the explosion is attributed would certainly have been discovered. However this may be, it could not be said that the undisputed evidence showed a proper inspection by the insurance company, or that in the shape the evidence was presented a mere, somewhat vague, report by an officer of that company, not sworn to, was the exercise of reasonable care on part of defendant not disputed. We therefore think that technically the court below committed no error in refusing the points as they were framed.

And if the law of the charge should be determined on the simple negativing of these two points, we would not reverse. But the instruction does not stand on them alone. Nor do we think the learned judge of the court below intended it should. The answers stand side by side with the positive instruction already quoted from the general charge. From the two it seems to us the jury would necessarily understand that it did not matter if the Hauers, the two machinists, were fully competent, the insurance company's inspection thorough, and its report truthful, and that defendant was guilty of no actual negligence in relying on them; nevertheless the defendant could not delegate its duty of putting the boiler in good repair to competent mechanics or expert insurance inspectors, and that, if it did so, and either the mechanics or insurance company's inspectors were negligent, defendant must answer for the consequences of such negligence. This is not the law. It either makes the owner of a boiler—as nearly every manufacturer is an insurer, or it compels each owner to be an expert boiler maker, which he is not. We concede that there is some apparent conflict in the authorities in our own state on the question, but we apprehend, when they are closely examined, no real one. Most of the cases which treat of the subject are between servant and master. In such cases a contractual relation exists. Impliedly, the master engages to furnish the servant reasonably safe tools and appliances with which to perform the master's work, and to give to the youthful or inexperienced servant suitable instructions as to the dangerous nature of the work and peril in the use of the particular machinery; and the question of reasonable care by the master is frequently complicated by the question as to what risk the servant assumed by engaging in that particular hazardous employment. The question is also in many cases complicated by the further question, Was the injury attributable in any degree to the servant's own negligence, or to the negligence of a fellow servant? Here none of these elements are present. The plaintiff carried on a hotel in a closely adjoining building, but he had no business connection with defendant or its manufacturing plant, and the sole question is, What duty did defendant owe him in the construction and repair of its boiler?

The law as laid down by the learned judge of the court below is based on the idea, more elaborately set forth in his very able opinion overruling the motion for a new trial, that, where a servant is intrusted with the performance of a personal duty of the master, he is a representative of the master, · and the master is answerable to third per.

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