(76 Hun, 575.)

#### LEARY v. LEHIGH VAL. R. CO.

(Supreme Court, General Term, Fifth Department.

April 12, 1894.)

Master and Servant—Defective Appliances.

The explosion of a boiler for want of sufficient water is the result of the engineer’s negligence where the engine was provided, with gauge cocks, in good order, to test the quantity of water, though the explosion occurred at night, and though it was difficult to distinguish in the dark between the emission of water and steam from the gauge cocks, and the engine was not provided with a light to show the cocks at night.

Action by Margaret Leary, as administratrix of John W. Leary, deceased, against the Lehigh Valley Railroad Company, to recover damages for the death of plaintiff’s intestate. Plaintiff moves for a new trial on exceptions taken on the trial in the superior court of Buffalo, and ordered to be heard at general term in the first instance, and afterwards removed into the supreme court, pursuant to Code Civ. Proc. § 273. Denied.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

John Loughlin, for plaintiff.

Martin Carey, for defendant.

BRADLEY, J.

The plaintiff charges that the death of her intestate was caused by the negligence of the defendant. A non-suit was directed by the trial court. The plaintiff’s intestate was a fireman, in the discharge of Ms duty as such, upon the defendant’s locomotive engine, which was drawing a train of freight cars, at the time in question. His death was the result of injuries received from the explosion of the boiler, which also caused the death of the engineer. There is no dispute about the facts. The boiler *188of the engine exploded because the water' in it was permitted to get too low. The explosion was the necessary consequence of the cause which produced it. The engineer was a competent man for the position he occupied. The engine was in good condition for service; and the only question is whether it is properly equipped with the means or apparatus to enable the engineer to gauge the water in the boiler. There were two injectors on the engine,, properly located, for the purpose of taking water, when required,, from the tank into the boiler. With the means for such supply no fault is found. Upon the boiler were gauge cocks, accessible to the engineer, by which he could test the height of the water in the-boiler, and ascertain whether it contained adequate quantity for the purpose of steam and safety. This he had failed to ”do at the time in question. The water had fallen about 14 inches below the-crown sheet, which became so heated that the stay bolts were ineffectual to hold it to its place, and the necessary consequence was the explosion. This would have been obviated by a supply of water sufficient to cover it. The crown sheet is said to have been 20-inches below the upper surface of the boiler. This condition of the-water in the boiler was attributable to the failure of the engineer to use the means he had of ascertaining the necessity which existed for further supply of water in the boiler, and to furnish it by the-use of the injectors. The try cocks were in good order. The time of the explosion was on a December morning, before daylight The weather was very cold. And there is some evidence tending to prove that, by the sound on opening the gauge cocks, there might be some difficulty in distinguishing between the emission of water- and steam; and therefore it may be said that, if he applied the test by the means provided, he could, by the discharge of steam, have-been misled into the belief that it was water.

It is insisted by the learned counsel for the plaintiff that it was-the duty of the defendant to furnish better facilities for the engineer to ascertain the stage of the water in the boiler; that there should have been provided a stationary light to enable him to see the valve- or test cock in the nighttime, or that there should have been a glass gauge in like manner lighted. But more especially it is urged that there should have been in the crown sheet what is known as a “fusible plug.” The duty of the defendant was such that it was-required to use reasonable care in furnishing its employés with suitable implements, apparatus, and machinery for the service in which they were engaged. This duty did not demand of it the-supply of the very best means that could be devised. The requirement is satisfied when they are provided with appliances which, in that sense of the term, are reasonably safe, in good condition,, and adequate to the purpose in view; and then the fact that the use of them is or becomes unsafe by want of due care on the part of the employés does not charge the master with injurious consequences so occasioned to them from such use. Stringham v. Hilton, 111 N. Y. 188, 18 N. E. 870; Kern v. Refining Co., 125 N. Y. 50, 25 2 N. E. 1071. It is sufficient that the apparatus is in good condition of repair, and is such as is ordinarily or generally in use for-*189the like purpose. Hickey v. Taaffe, 105 N. Y. 26, 12 N. E. 286. The application of these general principles to the present case would seem to relieve the defendant from the charge of negligence. While a well-sustained light upon the test valves would render it more convenient to discover, in the nighttime, whether water is discharged from them when opened, the absence of light requires only more care to do so. The same may be said of a glass gauge exposed to light, with the qualification that, as appears by the evidence, it might become clogged and unreliable. Then it would be worse than useless. And although a fusible plug in the crown sheet would, by the melting of its fillings, make an opening for the passage of steam into the firebox, and thus give warning, this might also have the effect to stop the train, and bring danger of collision in the rear, as well as to cause delay in travel and transportation upon the railroad. The engineer knew that he had neither of those appliances to relieve himself from care in using the means provided. He had the infallible gauge cocks to test and ascertain the height and adequacy of the water in the boiler, and, as must be assumed, sufficient skill to do it intelligently. So far as appears by the evidence, the fusible plug is not used on railroad locomotives. It is, however, used to some extent upon stationary engines, and upon some in marine service, other than war vessels. In the cases where so used, it may be done without danger, and with less inconvenience. The calamity in question must therefore be deemed the result of the negligence of the engineer, and not the co-operative negligence of him and the defendant; and, as one of the hazards assumed by the plaintiff’s intestate when he entered into the defendant’s service was that arising from the negligence of his coemployés, the alleged cause of action is not supported. The motion for the non-suit was therefore properly granted, and the view here taken renders it unnecessary to consider any other exception, as none of the evidence excluded or stricken out could have had any essential bearing in support of the action. The motion for a new trial should be denied, and judgment directed for the defendant. All concur.