#### Zoesch, Administratrix, Appellant, vs. Flambeau Paper Company, Respondent.

*December 17, 1907*

January *8, 1908.*

*Master and, servant: Negligence: Personal injuries to servant: Safe place and, appliances: Scope of employment: Court and jury: Nonsuit:*Res geste: *Conjecture: Contributory negligence: Discovery: Examination before trial: Deposition of witness present in court: Appeal and error: Harmless error.*

1. In an action for the negligent killing of a servant while engaged in discharging a steam boiler, the evidence, stated in the opinion, is *held*to have required submission to the jury of the question of the master’s negligence in failing to provide a safe place and appliances for the performance of the operation.

2. In an action for' the negligent killing of a servant while engaged in discharging a steam boiler, the evidence, stated in the opinion, is *held*to have required submission to the jury of the question whether the servant was within the line of his employment, or was disobeying orders, when the accident happened.

3. In such case if it appeared that the servant was in fact a subordinate and knew or ought to have known that he was subject to orders, and that he disobeyed such orders, and as a result of such disobeyance suffered his injuries and death, there could be no recovery.

4. Where a servant was injured while assisting in discharging a steam boiler, his declaration while being removed from the place where he was injured: “The thing stopped running, and I opened it up a little bit, and the whole end blowed out on me,” is part of the *res gestee,*and affirmative evidence of the facts stated.

*2715. In such case a finding that the accident happened in the manner stated in such declaration would be a finding based upon evidence, not upon conjecture.

6. In an action for the negligent killing of a servant engaged in discharging a steam boiler, the evidence, stated in the opinion, is *held*to show that the discharge pipe became obstructed and the flow stopped for some reason and that in opening the valve wider the obstruction was suddenly removed and the accident happened.

7. In an action for the negligent killing of a servant engaged in discharging a steam boiler, the evidence, stated in the opinion, is *held*to require submission to the jury of the question of contributory negligence.

8. In an action against a corporation for the death of a servant the defendant’s superintendent was examined under sec. 4096, Stats. (1898), and a part of his evidence so taken introduced by plaintiff against objection on the first day of the trial. On the second day, the superintendent being present in court, the court struck out that part of his deposition already introduced and he was put on the stand by the plaintiff and testified at length. *Eeld,*that such ruling was not prejudicial, since the superintendent was not an officer of the corporation, but a mere employee, and it also appeared that his evidence given on the trial substantially covered that given by him in his deposition.

Appeal from a judgment of tbe circuit court for Douglas county: A. J. ViNje, Circuit Judge.

*Reversed.*

This is an action by the plaintiff, as administratrix, to recover damages for the death of one Bernard Zoesch, her husband, an employee of the defendant, which death is alleged to have been caused by the negligence of the defendant in not furnishing him a safe place to work and not instructing him or warning him of the danger to be apprehended. At the time of his death the intestate was a common laborer about thirty years of age and had been employed for a year by the defendant in its paper mill at Park Palls, Price county, as size maker and general utility man. He had no experience as an engineer, but had c n several occasions worked in the fire room assisting the firemen in putting fuel in the furnace, but had not assisted in discharging a boiler. The defend*272ant’s mill was operated by steam produced by a battery of six large boilers standing side by side and inclosed with, brickwork in the boiler room. At the east or rear end of this row of boilers there was a passageway about five feet in width and forty-five feet in length, formed by the east wall of the boiler room on one side and the brick wall inclosing the- boilers at the other. This passageway was inclosed by a brick wall at the north end, and had two windows and a door leading ont of doors on the east side, the door being nineteen feet south of the north wall. Each *boiler*was fitted with a four-inch discharge pipe about two feet above the floor and extending into the passageway at right angles about two and one-half feet, and having a straightaway or gate blow-off valve at the end. These pipes were used for the purpose of discharging the steam and hot water from the boilers, and two of the boilers were discharged and cleaned every Sunday. In discharging a boiler an iron elbow was screwed into the discharge pipe, its mouth, being a foot or so from the floor when in position and immediately above a wooden trough running along the floor of the five-foot passage next to the outside wall. This trough was usually covered with long boards, but when a boiler was discharged the board was taken off, a tin pipe two feet or so in length was slipped loosely over the mouth of the elbow and inserted in a slantiúg position into the trough, the valve was then opened, and the contents of the boiler thus allowed to run into the trough, which extended out of the mill and discharged into the river. These were the only means and appliances furnished for the purpose of discharging the boilers. The work of discharging the boilers was always done by the firing crew, which ordinarily consisted of four men, viz., one head fireman, a second fireman, and two helpers. There were two firing crews or shifts, one going on duty at 6 o’clock p. m. and the other at 7 o’clock a. m.; but on Sunday the night crew staid on duty until noon (except one helper), and it was their duty to prepare the boilers *273which were to be cleaned and to actually discharge them if tbe contents were sufficiently cooled before tbe shift ended; otherwise the other crew, which went on duty at noon Sunday, took np the work and completed it. -In discharging the boilers after drawing the fires the custom was to draw off some of tbe contents, then pump cold water into the boiler, and by this alternate process cool it off and discharge it gradually.

On Saturday, October 24, 1903, the deceased worked all day at his usual work. Some time in the afternoon he applied to Mr. Boulton, the superintendent of the mill, for extra work, and was told that he could go to work at midnight in the fire room and help fire. The night shift was one man short that night, and the testimony tended to show that one Meyers, the head fireman, was the man who- was not on duty. Plaintiff’s claim was that the deceased was hired to take Meyers’ place, and that his duties as a fireman did not end until noon on Sunday; but defendant’s claim was that he was only employed until 7 o’clock a. m., when his duties und$r that employment ceased. The deceased went to work at midnight in the fire room with one Belter, who was second fireman, and both worked until 7 a. m. At that time deceased went home and got breakfast and returned at about 8 o’clock. Boulton claims that when deceased came back at 8 o’clock he met him in the boiler room and told him to go to work cleaning out a pulley on the dynamo, and after that to help about- some pipe fitting. It is claimed by plaintiff that Belter’s evidence tends to contradict this testimony, and the testimony on the subject will be fully stated in the opinion. Belter was at work cleaning the grates when deceased came back. BA testified that the deceased turned on the steam hose used to blow out the flues, and, further, that at about 9 o’clock, or somewhat later, he and Zoesch went into the passageway where the discharge pipes are, and that he (Belter)' screwed on the elbow, adjusted the tin pipe, and *274turned on the *valve*of boiler ETo. 6 (which is the boiler at the extreme north end) about half, and the water and steam commenced to discharge; that he told Zoesch the valve was open far enough, and that he and Zoesch then went up on a platform where the water gauges were, and he told Zoesch to watch the glass till it got down to one inch and then go down and close the valve; that he (Belter) then went down below to his work in front of the boilers, and in three or four minutes Zoesch hollered to him to come up1 and see how fast the water was going down, and he hollered back to watch until it went down to one inch; that in- a few moments he heard Zoesch hollering for help-, and he (Belter) ran around into the five-foot passage and found Zoesch crawling out on hands and knees, with much hot water running on the floor and much steam escaping; that he and one Retloff helped Zoesch out of doors and in ten or fifteen minutes he went back into the passageway and found the valve turned wide open, the elbow tight, and the loose pipe lying beside the boiler. One Russell testified that he was present when Belter and Retloff brought Zoesch out of the boiler room, and that he said to Zoesch: “Good God, Ben! "What’s the matter ? What’s happened to you?” and Zoesch moaned and said: “The thing stopped running and I opened it up a little bit, and the whole end blowed out on me.” Zoesch died of his injuries on the evening of the same day. At the conclusion of the plaintiff’s evidence the court allowed several amendments to be made to the complaint so- as to conform to the proofs, and then granted defendant’s motion for a nonsuit and entered judgment of dismissal of the complaint, from which plaintiff appeals.

*T. M. Holland*and *F. F.*Wheeler, for the appellant.

For the respondent there was a brief by *Howard L. Abbott*and *Boss & Divyer,*and oral argument by *W. D. Dwyer.*

Winslow, O. J.

Four general contentions are made in support of the judgment of nonsuit, viz.: (1) That it appears *275tbat tbe respondent furnished a reasonably safe place and appliances; (2) that the deceased was not within the line of his employment, or was disobeying orders, when the accident happened; (8) that the manner in which the accident happened is mere matter of conjecture; and (4) that, if this latter proposition be not correct, then the accident was caused by the negligence of the deceased himself.

1. We cannot regard the first proposition as sound. Steam in large quantities and under pressure is well known to be a highly dangerous agent to handle and control. To discharge a large boiler full of boiling water and steam at a pressure of fifty poimds to the inch (as the testimony tended to show was the case here) is manifestly a task requiring not only fit and suitable appliances but careful management. There is in the case testimony by two witnesses, familiar with the appliances in use in other mills for this purpose, to the effect that the ordinary and usual way to arrange the blow-off pipe is to carry the same outside of the building, so that it will blow off in the open air, or to extend it into another pipe in connection with other boilers, or to extend it into a closed sewer or sewer basin, and that it is not usual to have the discharge pipe blow off inside the boiler room, on account of the danger to the man at the valve and the danger of fracturing the boiler. There was certainly ample evidence to carry to the jury the question whether the defendant was negligent in failing to provide for its employees a safe place and appliances for the performance of this operation.

2. Whether there was evidence from which the jury could find that the deceased was within the line of his duty in attempting to assist in the operation of blowing off the .boiler is a question of greater difficulty. It is admitted that the night shift of firemen on Saturday night remain on duty until Sunday noon, and that it is a part of their duty on Sunday morning to prepare two boilers for discharge and cleaning, and to discharge them if the contents are sufficiently cooled before their time is up. Meyers, the head fireman, was off *276duty on the night in question, and Boulton, the superintendent, testifies that he told the deceased to go to worlc at midnight and help' on the fire. When asked if he (Boulton) told the deceased to quit at 7 o’clock in the morning he answered, “Seven o’clock in the morning, supposed his time was up.” But this answer was stricken out by the court and he was again asked if he told him to quit at 7 o’clock, to which he answered, “Told him I only wanted him for the night.” This forms the only direct evidence of the terms of his employment. Boulton further testifies, however, that Zoesch went home to breakfast at 7 and returned at 8; that he saw him when he returned and immediately set him at work at other tasks. Erom this testimony it is claimed that it is clearly shown that Zoesch was not employed as a fireman or fireman’s helper after 7 o’clock a. m. and was a mere volunteer in the boiler room when the accident happened. But it is very significant that Boulton declined to testify that he told the deceased to quit at 7 a. m., hut would only say that he told him “he only wanted him for the night.” Row Zoesch was admittedly put to work to take the place of a man on the night shift who was off for that night. The duties of the night shift continued on Sunday until noon, and Zoesch undoubtedly knew this fact. Under such circumstances, what is the fair inference to he drawn from the words testified to by Boulton ? Are they so certain in their meaning that but one conclusion could be drawn, namely, that Zoesch was to quit at 7 o’clock, or might he fairly and honestly construe them as meaning that he was put upon the night shift, and that employment for the night meant employment to perform the duties of a member of the night shift ?

We confess that the latter inference seems to us fairly capable of being drawn from the words used under the circumstances surrounding the parties. There is direct evidence tending to show that Zoesch so understood, for Belter testified that Zoesch told him in the morning, after he came *277back from breakfast, that he was there in Meyers3 place. Even taking Bonlton’s story of the transaction between him and Zoesch after breakfast to be true, it seems clear that they both understood that Zoesch’s time of service was not over at 7 o’clock; for Boulton, without any word of surprise at his return and without any new contract of employment, immediately set him at work, apparently as if the former employment still persisted until noon. This conversation between Boulton and Zoesch in the boiler room at 8 o’clock a. m., at which Boulton claims that he set Zoesch at other work, is said to be undisputed, and is relied on by respondent as conclusively showing that he was out of the line of his employment when later he was assisting in the discharge of the boiler. 'We think it cannot have any such conclusive effect, for two reasons: First, Boulton testified that Belter was standing but a few feet distant when this conversation took place, while Belter entirely denies hearing any such conversation, and also denies that Boulton was in the boiler room to his knowledge at any time during the morning, so the question whether any such conversation ever took place is in dispute under the evidence; second, there is nothing to show that Zoesch did not do the jobs referred to by Boulton and finish them before going to work at the boilers. About an hour’s time seems to have intervened, according to the testimony, before operations were begun on the boilers, and, if Zoesch was justified in concluding that his employment as fireman did not close until noon, no reason is perceived why he might not rightly return to the ordinary duty of a fireman after performing the special jobs at which Boulton set him.

But it is further insisted that Zoesch was employed simply as an assistant fireman or helper and became a subordinate of Belter, the second fireman, and that in meddling with the valve at all he disobeyed the orders of his superior. The evidence is much confused as to the duties and authority of the head fireman as well as to the place which Zoesch really occu*278pied. Boulton, testified that the firemen ranked about the same; that the head fireman got a little more pay; “that he kind of looks after things and tells them to put more fuel in;” that with regard to cleaning the boilers “he might tell them to turn the water on the hose, to start the pumps, or something like that; but, as I said before, *they all worlc together.”*Thus it appears that the authority of the head fireman is very vague and illy defined, if it exists. at all. There is no testimony that Belter was made head fireman for the night by any special order or that there was any custom to that effect. Zoesch seems to have considered himself head fireman because Meyers was off duty, and his claim does not seem to have been disputed by Belter; but when it came to cleaning the boiler, Belter, who had experience, assumed to give directions, which Zoesch received without dissent or protest. Under this contradictory state of the evidence we cannot say that the question was not fairly for the jury. Of course, if it appeared that Zoesch was in fact a subordinate and knew or ought to have known that he was subject to the orders of Belter, and that he disobeyed such orders, and as a result of such disobedience suffered his injuries and death, there could be no recovery; but we are unable to say that these facts appeared by undisputed evidence or by such overwhelming-preponderance thereof as to justify taking the question from the jury.

3. The contention that the question as to how the accident happened can only be a matter of conjecture is not tenable. It seems to be certain that for some reason Zoesch went down to the valve and turned it on, so that a sudden -and overwhelming rush of boiling water and steam then resulted, from which he could not escape. The evidence of Russell tends to show that when Zoesch was taken out of doors he at once said, “The thing stopped running, and I opened it up a little bit, and the whole end blowed out on me.” This was unquestionably part of the *res*gestee, and is affirmative evidence of the *279facts stated. *Christianson v. Pioneer F. Co.*92 Wis. 649, 66 N. W. 699; *Huffer v. Nat. D. Co.*119 Wis. 417, 96 N. W. 809. Tbe valve was afterwards found to be turned on in full. So there was in tbe case proof tbat tbe flow stopped for some reason, and tbat in opening tbe valve wider tbe obstruct tion was suddenly removed and tbe accident happened. Tbis was not an incredible state of facts, as there was evidence tbat tbe water in tbe boiler was river water and liable to form large amounts of scale which might obstruct tbe flow; and again, Zoesch bad received no instruction or command from Belter as to what to do in case tbe flow stopped, so in tbis case there would be no disobedience of orders, even if Belter was tbe superior. A finding tbat tbe accident happened in tbis way would be a finding based upon evidence and not upon conjecture.

4. Little need be said upon tbe contention tbat Zoesch was guilty of contributory negligence as a matter of law. Zoesch was a common laborer, without experience in performing tbis dangerous work, and be bad received no warning of tbe danger nor instruction save such as Belter may have given him. It was admittedly tbe duty of tbe night shift, working together, to discharge tbe boiler. If be was reasonably justified in concluding that be was employed as a member of the night shift until noon, be was in tbe line of bis duty in attempting to discharge tbe boiler. If be was in fact Belter’s subordinate and knew or ought to have known tbat fact, and was injured because be disobeyed Belter’s instructions, be would be guilty of contributory negligence; but if be disobeyed no instructions, or was justified in believing tbat be was Belter’s superior, then the court could not say as matter of law tbat be was guilty of contributory negligence. TJnder tbe evidence tbe question was for tbe jury.

5. Tbe evidence of Boulton, tbe superintendent of tbe mill, was taken under sec. 4096, Stats. (1898), before trial, and a part of it was introduced by the plaintiff against ob*280jection on tbe first day of tbe trial. On tbe second day Boul-ton was present in court, and, on attention being called to that fact, tbe court struct out that part of tbe deposition already introduced and Boulton was put upon tbe stand by tbe plaintiff and testified at length. Tbe plaintiff now complains of tbe ruling striking out tbe deposition. There are two sufficient answers to this objection: (1) Boulton was not an officer of the corporation, but a mere employee; hence under tbe rule announced in *Hughes v.*C., *St.*P., *M. & O.*R. *Co.*122 Wis. 258, 99 N. W. 897, and *Johnson v. St. P. & W. C. Co.*126 Wis. 492, 105 N. W. 1048, tbe deposition was not admissible when tbe witness was present. (2) Tbe evidence of Boulton given on tbe trial substantially covered tbe evidence given by him in bis deposition; hence no prejudicial result could follow from striking out tbe deposition.

Some minor rulings on evidence are complained of, but we do not deem it necessary to discuss them.

*By the Court.*— Judgment reversed, and action remanded for a new trial.