#### THE J. S. YOUNG COMPANY, a Body Corporate, and MAC ANDREWS AND FORBES COMPANY, a Body Corporate, *vs.*STATE OF MARYLAND, for the use of Rosa Kabat, Widow, and Helen M. Kabat and Teresa Kabat, Infants, by Their Mother and Next Friend, Rosa Kabat, and JOSEPH KABAT AND JOHN KABAT.

*Negligence: employer and employee; duty of employer; burden of proof; “no evidence/’ actionable negligence.*

An employer is bound to use due and reasonable diligence in providing the proper means, appliances and instruments for doing the work assigned to his employees. p. 251

An employer is not justified in knowingly and negligently exposing the employee to any extraordinary or unreasonable peril in the course of his employment, against which, from the want of knowledge or skill, the employee could not, by the use of ordinary care or prudence, guard himself. p. 251

In an action by equitable plaintiffs against an employer for damages for a death claimed to be dúo by his negligence it is incumbent upon the plaintiffs not only to offer evidence legally sufficient to prove actionable negligence on the part of the defendant, but they are bound to offer evidence legally sufficient to show that the negligence charged was the cause of the death. p. 252

*248Actionable negligence is an act, or omission of duty, which is the approximate cause of the injury. p. 252

An- employee was engaged in the boiler. house of a factory located on the edge of the harbor; where there was a violent explosion of a steam pipe; the employee was apparently not injured by this explosion and escaped to a place of safety; .he returned to the place of the accident and was not seen again until found dead in the waters of the harbor, with his body scalded as if by escaping steam. *Held,*that there was no evidence introduced, of negligence on the part of the defendant proper for the consideration of the jury. p. 253

*Decided January*11th, *1912.*

Appeal from the Baltimore City Count (Dobler, J.).

The cause was argued before Boyd, 0. J., Briscoe, Pearce, Burke, Thomas, Pattisoh and Urher, JJ.

*W. L. Bawls*and *William L. Marbury*(with whom was *Jesse Slinglujf*on the brief), for the appellants.

■ *'Fleet W. Qox*and *Robert F. Leach,*Jr., for the appellees.

Burke, J.,

delivered the opinion of the Court.

' 'This is the defendants’ appeal from a judgment entered against them in the Baltimore City Court in a suit of the State to 'the use of the widow and children of Vincent Nab-at, who was found dead in the waters of the Baltimore Harbor.on the night of December 14th, 1909.

The defendants operate a manufacturing plant in the City of Baltimore in which were installed a number of boilers. The deceased was a fireman in charge of one of these boilers, and had been in the employ of the defendants in that capacity for about twenty-five years. Attached to the boiler in ljis, charge on the night in. question was an iron pipe which extended through the wall of the defendant’s building. At *249or near the point where this pipe emerged from the wall there was placed a stop-cock, or valve, which was designed and used to relieve at certain times the pressure of steam upon the boiler. This was done by opening the valve. From the point where the stop-cock was placed there was a short pipe running to the ground where it connected with another pipe which lead to the waters of the harbor, a distance variously estimated from three and a half to twelve feet.

There is evidence in the record tending to prove that the ground between the wall of the defendant’s factory and the water was rough and uneven, and there being no light or guard rails along the harbor, the place at the time Kabat met his death was dangerous.

The declaration contained three counts in which the defendants were charged with three specific acts of negligence; first, in assigning the deceased “to work upon and about an engine and boiler, the exhaust pipes of which were run from the premises of the defendants over to and in the water of the harbor of Baltimore, about which said exhaust pipes there was no protection, guard or shield to prevent a person having occasion to be about the same from falling into said water”; second, that the deceased “was put to work upon and about an engine and boiler, the exhaust pipes of which were run from the premises of the defendants over to and in the water of the harbor of Baltimore, which exhaust pipes the defendants knew, or by the exercise of ordinary care on their part might have known to be dangerous, unsafe and unfit for use, because the same were defective and worn out and not capable of the uses to which they were put, and the cock at the end of said exhaust pipes was defective and known to the defendants to be defective, and of which dangerous and unsafe conditions the said Vincent Kabat was not advised, and could not have known by the exercise of ordinary care on his part,” and third, in requiring him in the performance of his duty to *250relieve tbe steam from the boiler through an exhaust pipe which was “old, worn, in bad condition and defectively constructed and installed by unskillful and incompetent employees, all of which were known to the defendant, but of which Vincent Kabat was in ignorance.”

The first count alleged that as the deceased attempted to turn the stop cock so as to relieve the boiler and pipes from the pressure of steam “and in the exercise of due and ordinary care in so doing said pipe suddenly burst from an explosion of steam accumulated in the same whereby the said Vincent Kabat, husband and father as aforesaid, was shocked and stunned and forced by said explosion into the water of said harbor of Baltimore, whereby he was killed or drowned.”

The second count charged that “on or about the 14th day of December, 1909, while the said Vincent Kabat was so assigned to work upon and about said engine and boiler and exhaust pipes without warning or notice to him, said exhaust pipes burst and exploded from an explosion of steam accumulated in the same, whereby the said Vincent Kabat, husband and father as aforesaid, was shocked, stunned and forced by said explosion into the water of said harbor of Baltimore whereby he was killed or drowned.”

In the third count it is alleged that by reason of its old, worn and bad condition known to the defendants but unknown to the deceased the pipe burst and exploded whereby Kabat was shocked and stunned to such an extent as to cause his death.

The issues to be tried were presented by the plea of not guilty. At the conclusion of the testimony offered on both sides the plaintiff submitted one prayer which was on the measure of damages. This prayer was granted. The defendants filed a special exception to this prayer upon the ground that there was no evidence in the case that the death of Vincent Kabat was due to any negligence on their part. This exception was overruled by the Oourt. The Court granted *251an instruction of its own by wbicb tbe jury were told that if they found from the evidence that the deceased was in position of safety at any time after the violent explosion or escape of steam mentioned in the testimony, they should find their verdict for the defendants.

The defendants submitted three prayers, the granting of either one of which would have defeated a recovery by the plaintiffs. These prayers were refused. The record presents but one bill of exception taken by the defendants to the action of the Court upon the prayers and the special exception filed thereto by the defendants.

The real question in the case relates to the propriety of the rejection of the defendants’ three prayers, each of which asked the Court to withdraw the case from the jury. The first prayer asserted that *under the pleadings*the equitable plaintiffs' had offered no legally sufficient evidence to entitle them to recover; the second asserted that the equitable plaintiffs had offered no legally sufficient evidence to show any negligence on the part of the defendants in respect to any duty owing by them to the deceased; and the third that by the uncontradicted evidence the deceased by his own negligence directly contributed to the happening of the accident which caused his death.

The defendants were bound to use due and reasonable diligence to provide the proper materials, appliances and instrumentalities for doing the work assigned to the deceased. Nor were they justified in knowingly or negligently exposing him to any extraordinary or unreasonable peril in the course of his employment, against which from the want of knowledge or skill he could not, by the use of ordinary care and prudence, under the circumstances, guard himself. Each count of the declaration is framed upon these familiar principles of law, and each, therefore, stated a good cause of action.

It is equally well settled that to sustain the action it was incumbent upon the equitable plaintiffs not only to offer *252evidence legally sufficient to prove tbe negligence of tbe defendants under tbe rule stated; but tbey were bound to offer evidence legally sufficient to show that tbe negligence charged resulted in tbe death of Vincent Kabat.

Actionable negligence is an act, or omission of duty which is tbe proximate cause of an injury. No matter to what extent, or in what respect a party may be negligent such negligence does not constitute a cause of action, unless- tbe negligence charged and tbe injuries sued for bear tbe relation of cause and effect. In legal contemplation, actionable negligence and injury are cause and effect. Tbe effect of tbe defendants’ first prayer, which referred to tbe pleadings, was to confine or limit tbe right of recovery to tbe issues made by tbe pleadings.

An examination of tbe evidence, in tbe light of these well-recognized principles, has led us to the conclusion that tbe equitable plaintiffs have wholly failed to establish their case, and that the defendants’ first and second prayers should have been granted.

How this unfortunate man. came to fall into the water is a matter of pure speculation or conjecture. Certainly, his death was not caused by the negligence charged in the declaration, although it is doubtless true that he would not have fallen in the water had not the explosion occurred; but the evidence is' clear that that explosion did not cause his death, or precipitate him into the water as alleged in the declaration.

Dealing with the evidence according to its general import and effect, it is shown that Kabat in company with Thomas Stephansky went to the stop cock referred to and opened it for the purpose of relieving the pressure of steam on the boiler, and that the exhaust pipe burst or exploded. This was quite a violent explosion, causing the escape of a considerable quantity of water and steam from the broken pipe, and blowing a hole in the ground under or near the pipe. Kabat was not injured by this explosion, but he became *253greatly excited thereby and ran into the building, where he was in a place of entire safety. ITe got a torch from the witness Olscwsky, and went on the outside of the building towards the broken pipe. It was dark on the outside, and the wind blew out the torch, and Olscwsky who was with Kabat came inside of the building. Nothing more was seen of Kabat until he was found dead in the waters of the harbor. These facts were shown by the testimony adduced on behalf of the plaintiffs. The witness Thomas Stephansky in the early part of his examination in chief was asked how Kabat met his death, and he replied: “Well, he fell into the water when the pipe blew out.” It was upon this' statement that the plaintiffs relied to take the case to the jury; but it is perfectly obvious that the witness did not mean that Kabat was injured by the explosion or that he fell into the water at the instant it occurred, because be proceeded to give an account of what occurred after the explosion in which the facts as to Kabat’s return to the building, his procuring the torch, and going on the outside towards the pipe are fully shown. In (this he is corroborated by the witness Olscwsky. It is evident that the statement by Stephansky was merely a general description of the occurrence which he subsequently fully explained in his testimony.

It is apparent from the facts stated that the equitable plaintiffs on the evidence introduced in their own behalf failed to establish, or to offer any evidence tending to establish the issues made by the pleadings.

The evidence shows that the body of the deceased when taken from the water was badly scalded; but when or how he received these injuries is not shown. It is, however, clearly shown that he was not so injured at the instant the pipe exploded as alleged in the declaration. It is probable that after the torch was extinguished he approached the pipe and came in contact with the escaping steam, and in *254bis excitement stumbled or fell into tbe water. But tbis is a mere inference.

*Judgment reversed without a new trial, with costs to the appellants.*