Koehler v. New York Steam Co.

• Decision Date: 24 October 1905
• Citation: 183 N.Y. 1,75 N.E. 538
• Parties: KOEHLER v. NEW YORK STEAM CO.
• Court: New York Court of Appeals Court of Appeals

183 N.Y. 1

75 N.E. 538

KOEHLER

v.NEW YORK STEAM CO.

Court of Appeals of New York.

Oct. 24, 1905.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Elizabeth Koehler, administratrix of John Koehler, against the New York Steam Company. Judgment for defendant was affirmed by the Appellate Division by divided court (87 N. Y. Supp. 1139,93 App. Div. 612), and plaintiff appeals. Reversed.

This action was brought to recover damages for the death of plaintiff's intestate, alleged to have been caused by the negligence of the defendant. The accident which caused the death occurred on the afternoon of Sunday, September 23, 1900. At that time the intestate was a laborer in the employ of the defendant, a corporation engaged in the business of supplying steam for motive and heating purposes by means of pipes laid under the streets of the city of New York. The accident occurred at the corner of Cedar and William streets. The intestate, with other laborers, was at work in a trench engaged in repairing a pipe under the direction of the defendant's foreman. While thus engaged an elbow upon another pipe owned and controlled by the defendant, and which was then charged with steam, split open, allowing the steam to escape, and scalding the deceased so badly that he died in consequence thereof a few days later. The elbow that burst was a new one, and shortly prior to the accident had been taken from the defendant's storeroom, where large numbers of similar castings were kept. Upon the trial the evidence was conflicting as to whether there was a defect in the elbow or whether a careful inspection would have disclosed such defect. The action has been tried three times. Upon the first trial the jury rendered a verdict in favor of the plaintiff. The judgment entered upon this verdict was reversed by the Appellate Division for an error in a ruling upon the evidence. 71 App. Div. 222,75 N. Y. Supp. 597. Upon the second trial the jury again redered a a verdict in favor of the plaintiff, and again the judgment was reversed by the Appellate Division. 84 App. Div. 221,82 N. Y. Supp. 588. Upon the third trial a verdict was directed by the court in favor of the defendant. The judgment entered thereon was affirmed by the Appellate Division by a divided court, and this appeal is from that affirmance.

Edward A. Alexander, G. Herbert Cone, Jerome H. Buck, and Ignatius Weltner, for appellant.

Frank Verner Johnson, for respondent.

WERNER, J. (after stating the facts).

The learned Appellate Division, in its opinion delivered upon the second appeal in this action (84 App. Div. 221,82 N. Y. Supp. 588), held that the evidence would have warranted a jury in finding that the elbow in question was defective and that a careful inspection would have disclosed the defect. But that learned court also held that the uncontradicted evidence of the defendant's employés proved that a proper inspection had been made. Upon that view of the evidence the court seems to have decided as matter of law that the defendant had fully performed its duty when it had provided the means and men for a proper inspection. To state it in a different form, the court held that although the evidence warranted the jury in finding that a defective condition existed which could have been discovered by a careful inspection, yet the defendant was not liable, since it had provided for an inspection by competent employés. In this conclusion we think the learned court below clearly erred. It has become one of the axioms of negligence law that the duty of inspection is the master's duty, and one that cannot be delegated, so as to relieve the master from responsibility. If a servant performs this duty, he is the alter ego of the master, and for any negligence in its discharge the latter is liable. This rule is well stated by Chief Judge Cullen in McGuire v. Bell Telephone Co., 167 N. Y. 208, 211,60 N. E. 433, 434,52 L. R. A. 437, as follows: ‘The master personally owes to his servants the duty of using ordinary care and diligence to provide for them a reasonably safe place to work, and sound and suitable appliances and materials with which to work, and is bound to inspect and examine these things from time to time, and use ordinary care to discover and repair defects in them. Reasonable care involves proper inspection, and negligence in respect to it, in such cases as this, is the negligence of the master, and none the less so when the inspection is committed to a servant.’ The rule thus set forth is established by a long line of cases in this court, of which we cite only a few: Bailey v. R., W. & O. R. R. C.. 139 N. Y. 302, 34 N. E. 918;Durkin v. Sharp, 88 N. Y. 225;Simone v. Kirk, 173 N. Y. 7, 13,65 N. E. 739;Byrne v. Eastmans Co., 163 N. Y. 461, 465,57 N. E. 738;Eastland v. Clarke, 165 N. Y. 420, 429,59 N. E. 202.

The evidence before the Appellate Division upon the former appeal was exactly the same as that in the record now before us, and we think it was properly held that the evidence would have warranted the jury in finding that there was properly held that the evidence a careful inspection would have disclosed. In its opinion (84 App. Div. 224,82 N. Y. Supp. 590) the court below said: ‘While the defendant's witnesses in point of numbers and weight preponderate over those brought by the plaintiff, we should hesitate to disturb this verdict if it rested entirely upon this disputed question of fact as to whether the bursting was or was not due to the original defect in the elbow or casting.’ An examination of the record convinces us that the Appellate Division correctly decided that the evidence was conflicting on all the material facts involved. At the time of the accident the pipe of which the elbow was a part was subject to a pressure of 80 to 85 pounds of steam to the square inch. It is not disputed that the metal on the inside of the neck of the elbow at the point of fracture was spongy, although the claim is made that there was enough solid metal outside of this spongy portion to make the casting safe.

Viola, an expert called as a witness on behalf of plaintiff, was shown the broken elbow upon the trial, and was asked to state whether he observed any defects in it. He answered: ‘Yes, the lower part of this elbow is defective. Some part of this casting is spongy. * * * The outer side is a sound casting, perfectly sound, and the only defect is in the lower middle piece, the lower joint of the casting. That, I say, is spongy.’ He then testified that the defect that ‘I have observed * * * in the broken...