Olive v. Whitney Marble Co.

• Decision Date: 05 October 1886
• Citation: 103 N.Y. 292,8 N.E. 552
• Parties: OLIVE, Adm'x, etc., v. WHITNEY MARBLE CO.
• Court: New York Court of Appeals Court of Appeals

103 N.Y. 292

8 N.E. 552

OLIVE, Adm'x, etc.,

v.WHITNEY MARBLE CO.

Court of Appeals of New York.

October 5, 1886.

Action to recover damages for death. Order of nonsuit. Plaintiff appeals.

E. C. Emerson, for appellant.

John Lansing, for respondent.

EARL, J.

This action was brought to recover damages for the death of Joseph Olive, caused by the explosion of a steam-boiler owned by the defendant at Gouverneur, in this state. The material facts are as follows: The defendant bought two boilers of the Watertown Steam-engine Company, in September or October, 1883. They were placed side by side to furnish power for the same machinery, and were used until May 3, 1884, when the southerly boiler exploded. The vendor guarantied that the boilers should be good, constructed in first-class manner, and of good material. Shortly before the explosion, the defendant discovered that there were defects in the boilers, and notified the vendor thereof, and requested it to repair them. In compliance with this request, and to fulfill its contract and guaranty with the defendant, the vendors sent from Watertown one Hislop, the foreman of its boiler-shop, and one Dashno, a boiler-maker, to make the necessary repairs upon the boilers. They examined them, and found that they leaked steam, and needed calking, and some new rivets and bolts. Hislop told Dashno what to do, and that he should have the boilers fired up, and steam on, and examine them thoroughly, and not leave them until everything was perfect and right. He then returned to Watertown, and had some bolts made, and sent Olive, a boiler-maker who had been in the employ of the vendor for many years, with the bolts, to Gouverneur, with instructions to aid Dashno in making the repairs, and told him ‘to help get the rivets driven, and see that everything was all right before he came home and left the boilers; to fire the boilers up, and test them before he came home, and see that everything was all right.’

Dashno and Olive went to work upon the boilers, and, when they had substantially finished, one Newcombe, who was the defendant's engineer, and who was also killed by the explosion, put fire under the boilers. It does not appear at whose request he did this. It must be presumed that he did it at the request of the boiler-makers, for the purpose of making the tests which they had been instructed to make. The only witness who lived to tell what took place, immediately before the explosion, detailed a conversation which occurred between Newcombe and Dashno, who was, at the time, upon the south boiler, as follows: ‘Dashno asked Newcombe how much steam was on the north boiler. Newcombe said, ‘Ninety-five pounds.’ Dashno then said, ‘How much on this?’ [the south boiler.] Newcombe said, ‘Twenty-five pounds.’ Dashno then said, ‘Open the door in the further [north] boiler.’ Newcombe said, ‘Let the steam on it and he would risk it.’ Dashno then stepped up towards the smoke-stack. He had hardly made his move when the explosion came. When Newcombe said, ‘Let the steam on,’ Dashno made some objection. He did not want to; and Newcombe told him he would risk it; to let the steam on. The explosion then took place.'

The plaintiff claims that Newcombe was both unskillful and careless, and that the defendant is responsible for his acts. There was no proof whatever that the defendant had any notice that he was unskillful, or that he was in fact unskillful. There is no proof whatever, or just inference, that he was then acting for the defendant. The vendor had undertaken on its own account to make these repairs, and then...