Louisville & Nashville Railroad v. Allen's Adm'r , 78 Ala. 494 ( 1885 )

SOMERVILLE, J.

The intestate of the plaintiff was accidentally killed, in December, 1883, by the explosion of the boiler of a steam-engine, he being at the time in the employment of the defendant railroad company; and this action is brought to recover damages of the company, for its alleged negligence, as the proximate cause of the injury.

The whole controversy is, in our judgment, reduced to one single issue — that of negligence vel non on the part of the rail-' road company.

The defect in the boiler, which was the cause of the explosion, was a latent or secret one, not visible or capable of discovery by the closest inspection from within or without — being a flaw or crack in the upper part of one of the boiler-sheets, between two plates where they overlapped. Neither the removal of the flues, nor the stripping of the outside of the boiler of -the jacket and lagging, would have discovered it. Nor could it have been discovered by hammering on the boiler, or from the sound of the hammering. It is shown that both the outer and inner sheets of the boiler were in apparently good condition. The existence of the defect was, for these reasons, unknown in fact to the defendant, or any of its servants or employees.

It is insisted, however, that the railroad company was guilty of negligence in failing to keep the engine in proper repair, or, rather, in failing to discover the flaw or defect, which was the cause of the explosion, and upon the discovery of which the duty to repair would depend; that there was evidence tending to prove this negligence-, and that the question was one for the determination of the jury.

There was no absolute duty resting on the railroad to furnish a safe engine to be used in its service. It was not required to warrant the perfection of its machinery or appliances, or to insure its employees from injury from boiler explosions, or other like accidents. Its duty to employees was only to use due care and diligence — first, to furnish a suitable and safe engine; and then, like care and diligence to keep it in that condition. And by ‘ due care and diligeuce ’ we mean “ the care and diligence which a man of ordinary prudence, engaged in a like business, would exercise for his own protection, and the protection of his property” — a care which must be reasonably commensurate with the nature and hazards attending the particular business. Mobile Ohio R. R. Co. v. Thomas, 42 Ala. 672, 713 ; Smoot v. M. & M. R. R. Co., 67 Ala. 18; Pierce on Railroads, 370-373.

In this case, there neither can be, nor is any negligence imputed, in failing to furnish a good and safe engine originally. This is shown to have been done. The negligence charged is in failing to keep the engine in a safe condition. This charge can be sustained only by showing that there was negligence in failing to discover the defect in the boiler, which is supposed to have existed not longer than from two to six months previous to the date of the explosion.

The question is, then, resolved into the inquiry, did the defendant use due care and diligence to discover the latent flaw or crack in the boiler which was the cause of the accident ?

The question of negligence is one of fact for the determination of the jury, in cases of doubt, either where the facts are disputed, or where different minds may reasonably draw different inferences or conclusions. It is a question of law, however, to be decided by the court, where the facts are undisputed, and the inference to be drawn from them is clear and certain.— City Council of Montgomery v. Wright, 72 Ala. 411. The court will, accordingly, give a general charge on the evidence, when requested, where the evidence bearing on the question of negligence vel non is such as that the court would feel authorized to sustain a demurrer to it. — Smoot v. M. & M. Railway Co., 67 Ala. 15.

The evidence contained in the bill of exceptions tends to show but two grounds upon which it can be claimed, with any show of reason, that the defendant was negligent. The first is the fact, that three of the employees of the defendant — the engineer who carried the engine over to the yard, the night hostler whose business it was to look after engines when they came in at night, and the fireman on the engine- — had each, a few hours before the explosion, noticed a small leak near the sand-box, from which there escaped a small amount of steam, which was supposed to be smoke coming out of the side of tire engine near the dome, or sand-box. It was no unusual thing for smoke to thus emanate from the lagging or jacket of the engine, and in such cases it could be stopped by pouring a few buckets of water upon it; which, in this case, Hicks, the night hostler, did successfully, and no report was made of the incident. We dispose of this first suggestion of negligence, before proceeding to consider the second and more important one. If we admit that the several employees mentioned were negli-' gent in failing to discern the difference between smoke and steam, and in not reporting this discovery to the proper superior officers of the company, the defendant would not be liable for this negligence- of co-employees, or fellow-servants in the same general business.

It was the settled law in this State, prior to the act of February 12, 1885, establishing by statute a contrary rule, that the employer is not liable in damages for any injury suffered by a fellow-servant, by reason of the faults or negligence of another fellow-servant or co-employee, in the same general business, unless such employer was chargeable with want of due care in having employed incompetent or unskillful servants in the particular business in which the injury was received. — M. & M. Railway Co. v. Smith, 59 Ala. 248; M. & O. Railroad Company v. Thomas, 42 Ala. 672. There is nothing in the record which would tend to challenge the skill, or impugn the competency of the engineer, or other employees to whom we have referred. They were all very obviously fellow-servants of the plaintiff’s intestate, who was injured by their alleged negligence; and, under the rule above stated, no liability would rest on the defendant company for the want of care of their co-employees in this matter.

We now come to the second phase of the alleged negligence of the company, in failing to use due care by resorting to proper tests for discovering the flaw in the boiler.

It has been said that this defect was latent, and, very manifestly, could not have been detected by the most careful inspection. It is shown, moreover, that inspections were made of this and other engines at stated times, and with sufficient frequency, and by competent officials; and they failed to detect the defect. No negligence can be based, therefore, upon the failure to discover it by inspection merely, because, we repeat, it was latent, and not so discoverable.

The burden of proof in this case is on the plaintiff, to prove negligence; and this is not shifted by proving only the fact of injury from the explosion of the boiler. Such is the rule where an employee or servant sues, although a different principle is held to prevail where an injury is received by a passenger on a railroad, in consequence of a defect in any of its machinery or appliances.' — M. & M. R. R. Co. v. Thomas, 42 Ala. 672, 715; Pierce on Railroads, 382-383; Illinois Cent. Railroad Co. v. Housk, 72 Ill. 285.

The only two tests suggested are those of steam and water. The first, by reason of its danger, is shown rarely, if ever, to have been resorted to by railroads, or other companies using steam-boilers. It is neither practicable nor approved, because it serves to bring about the very thing it was intended to prevent. The one question, then, is, whether the company was guilty of a want of ordinary care, by failing to resort to the water, or hydraulic test, which consisted in applying a certain number of pounds pressure of water to the boiler by the aid of a suitable pump. It is testified by experts, that such tests, when made, are liable to strain the fibre of the iron, and impair the strength of the boiler, and thus, in themselves, tend to increase the hazard of explosion. The application of the hydraulic test, moreover, involved the stripping of the lagging on the outside of the boiler, and the removal of the flues from, the boiler — a talcing to pieces of the boiler, so to speak.

We conceive the correct and just rule to be, that a railroad company’s duty to its employees does not require it to adopt every new invention or appliance useful in its business, although it may serve to diminish risks to life, limb, or property, incident to its service. It is sufficient fulfillment of di\ty to adopt such as are ordinarily in use, by prudently conducted roads engaged in like business, and surrounded by like circumstances. Nor can it be exacted of such common carriers, that they should adopt extraordinary tests for discovering defects in machinery, which are not approved, practicable, and customary. They are not responsible for accidents from defects not discoverable by tests which are both practicable and usual, and such, as persons of ordinary prudence, engaged in like business, are accustomed to adopt under similar circumstances. The law is reasonable, and does not require such excess of caution as to embarrass or render impracticable the operation of the road, although the degree of care and vigilance required is not to be made dependent upon the pecuniary condition of the company, so as to expand or contract with the fluctuations of its finances. Pierce on Railroads, 273, 274; Lake Shore R. R. Co. v. McCormick, 74 Ind. 440; Grand Rapids R. R. Co. v. Huntly, 38 Mich. 537; Smoot v. M. & M. Railway Co., 67 Ala. 18 ; DeGraff v. N. Y. Central Railroad, 76 N. Y. 130; Carroll v. Staten Island R. R. Co. (58 N. Y. 126); s. c., 17 Amer. Rep. 221, 228.

The evidence shows, without conflict, that the hydraulic test, as applicable to steam-boilers, was an extraordinary and rare test, not in customary or common use by either railroads or other persons, except when engines are first manufactured to be put on the road, unless they failed to work well; or except when engines were overhauled periodically in the workshops of the company.

It may be said that the engine here in question was repaired or overhauled in February, 1883, and that it is not shown that the test was then applied ; and that this was negligence. The answer to this suggestion is furnished by the record. This repairing was done about ten months prior to the happening of the accident from which the injury occurred to the deceased, and there is no evidence tending to prove that the defect in the boiler existed at that time. On the contrary, the testimony shows that it could not have existed longer than from two to six months. The failure of the company, therefore, to apply the hydraulic test ten months previous, if negligence at all, had no proximate causal connection with the injury. The use of the test would not have discovered the defect.

Our conclusion is, that the deceased was injured by a mere misfortune or accident which he assumed as a risk of the busi- ■ ness in which he was employed, and which was in no wise attributable to the negligence of the defendant or its servants. The evidence showing these facts clearly, and without conflict, the court erred in refusing to give the general charge to find for defendant.

Reversed and remanded.

Cuopton, J., not sitting,