Page images
PDF
EPUB

entering into possession, they erected on the premises conveyed to them, on or along the south line of this street, extensive buildings for manufacturing purposes.

But it is insisted by the learned counsel for the defendants that, although the grantors in the Van Rensselaer deed designated and described this strip of land 50 feet wide as a street dedicated to the public, yet, the public never having accepted or adopted the dedication, it never became operative as to the public, and that the plaintiffs can therefore claim nothing under it. It is quite true that the evidence does not affirmatively show an acceptance on the part of the public authorities, such as is required to constitute it a public street; but we think, within the authorities, that it became an appurtenant to the premises purchased by the plaintiffs, and that, as such, the plaintiffs had a right, as against the defendants, who succeed to the interest of Van Rensselaer, the original grantor, to have the whole 50 feet remain open and unobstructed for the use of the premises purchased by them as a way or street. Story v. Railroad Co., 90 N. Y. 145; Child v. Chappell, 9 N. Y. 255; Hills v. Miller, 3 Paige, 256; Trustees v. Cowen, 4 Paige, 510. The use of this street or way was, by the Van Rensselaer conveyance and the maps, constituting a part thereof, dedicated for the purposes of a street and way, to the lands described in and conveyed by said deed, and the grantees and successors thereby acquired a right to the use of the 50 feet, and an easement over the same, and the whole thereof, which they may properly insist upon as ap purtenant to the lands acquired by them. Cox v. Kames, 45 N. Y. 557; Village of Olean v. Steyner, 135 N. Y. 341, 32 N. E. Rep. 9; Bank v. Nichols, 64 N. Y. 73; Welsh v. Taylor, 134 N. Y. 460, 31 N. E. Rep. 896. In the latter case the court, in discussing the effect of a grant somewhat like the one under which the plaintiffs claim, uses this language:

"A person who acquires title by a deed to an easement appurtenant to land has the same right of property therein as he has in the land, and it is no more necessary that he should make use of it to maintain his title than it is that he should actually occupy or cultivate the land; hence his title is not affected by nonuser, and u ss others show agains him some adverse possession, or loss of title in some of the ways recognized by law, he may rely on the existence of his property, with full assurance that, when the action arises for its use and enjoyment, he will find his rights therein absolutely unimpaired."

The plaintiffs, being therefore entitled to the free and uninterrupted use as a right of way of these 50 feet sought to be dedi cated by the original Van Rensselaer deed, may maintain their action against the defendants, restraining them from permanently obstructing said right of way, and commanding them to remove such obstruction. As the evidence establishes, and the referee finds, that such obstruction constitutes an interference with the plaintiffs' rights, for which there seems to be no adequate remedy at law, the only action at law which could be brought by the plaintiffs would be an action for damages for obstructing the way, and thus impairing its usefulness as appurtenant to the plaintiffs'

premises. Such an action would not supply the plaintiff with an adequate remedy for the injury sustained by encroachment upon the space previously allotted to plaintiff by his deed as a way of ingress to and egress from his premises, as all that he could recover in an action at law would be the damages sustained up to the time of the commencement of the action, and his right of way would still remain obstructed, resulting in an irreparable injury to his property, unless the obstruction was removed; and its removal can only be decreed in a court of equity. Baron v. Korn, 51 Hun, 402, 4 N. Y. Supp. 334, affirmed in 127 N. Y. 224, 27 N. E. Rep. 804. We are therefore clearly of the opinion that the case is one for the equitable cognizance of this court.

We have carefully examined the exceptions to the findings and conclusions of the referee by the defendants, and to his refusals to find on defendants' request, and find none of those exceptions well taken, except the eleventh exception, which relates to the rights of the plaintiffs to recover damages for the alleged illegal interference with plaintiffs' property rights. We think that exception well taken, and that the plaintiffs should not, under the proof in this case, recover pecuniary damages for the defendants' alleged interference with their property. We are therefore of the opinion that the judgment entered upon the report of the referee should be so modified as to strike out the recovery of $500, and, as modified, the decree should be affirmed, without costs of this appeal to either party as against the other. Let an order of affirmance be entered according to this opinion. All concur.

BALLARD v. HITCHCOCK MANUF'G CO.

(Supreme Court, General Term, Fourth Department. September 23, 1893.) 1. MASTER AND SERVANT-NEGLIGENCE-DANGEROUS PREMISES.

A master is bound to use reasonable care and diligence to keep in suitable repair a boiler which is in use in a room in which his servants are at work, so as to guard against its explosion, and in discharging such duty is bound to make use of proper instrumentalities in causing the repairs to be made.

2. SAME-VICE PRINCIPALS OR FELLOW SERVANTS.

In performing this duty, the master, by delegating the making of repairs to others, makes the latter his representatives.

3. SAME.

On conflicting evidence, it is for the jury to say whether a servant represented his master, or was merely a fellow servant, in performing acts which resulted in injury to another servant.

4 SAME EVIDENCE.

On the question whether the officers of a corporation knew of the defective condition of a boiler which exploded, killing a servant, it is proper to show information given to them as to its condition and need of repairs antecedent to the accident.

5. EVIDENCE-HARMLESS ERROR.

Error in admitting evidence for plaintiff is no ground for reversing a judgment in his favor, where there is other evidence to support it, and the court withdrew the evidence erroneously admitted, and several times instructed the jury to disregard it.

Appeal from circuit court, Cortland county.

Action by Ellen I. Ballard, as executrix of William P. Ballard, deceased, against the Hitchcock Manufacturing Company, for the death of her testator. From a judgment for plaintiff, and from an order denying a motion for a new trial made on a case and exceptions, defendant appeals. Affirmed.

For former reports, see 4 N. Y. Supp. 940; 5 N. Y. Supp. 952; 15 N. Y. Supp. 405.

On the 30th of May, 1887, William P. Ballard died, leaving a last will and testament, which was proved in Cortland county, and letters testamentary issued to the plaintiff. The defendant is a domestic corporation carrying on business in the village of Cortland, owning two large buildings "full of machinery, viz. punches, shears, trip hammers, saws, planers, shapers, sanders, and mortice machines. That for the purpose of creating the power to run such machinery, and the steam to heat said two buildings. defendant had in said two buildings three tubular boilers and three engines, one of which boilers was known as the 'Big Boiler,' and the other two as the 'Old Boilers.'" Plaintiff's complaint alleges that her testator, on the 30th of May, 1887, "was in the employment of the defendant, tending a mason by the name of Franklin H. Scott, who was laying up a brick-wall partition immediately in front of, and near by, said big boiler, and between the boiler room and the adjoining building. That plaintiff's testator was employed by defendant to perform services in a part of the said wooden building remote from the place where said big boiler was situated. *** He commenced upon the performance of said work unwarned by defendant of the defective condition of said boiler." It is also alleged "that for want of due care and attention to its duties towards its employes, * * and while the plaintiff's testator was in the employ of defendant, and in said employment was working within a few feet of said boiler, in the capacity as aforesaid, and without any contributory negligence or fault of plaintiff's testator, the boiler known as the 'Big Boiler,' by reason of said unsafeness, said defectiveness, of said neglect of defendant, * exploded, * * and plaintiff's testator received severe and mortal injuries therefrom," and in consequence of said injuries died on the 30th of May, 1887. The answer of the defendant denies that the injuries were received by plaintiff's testator through the carelessness, negligence, or improper conduct of the defendant, etc.

JJ.

*

*

*

Argued before HARDIN, P. J., and MERWIN and PARKER,

B. A. Benedict, for appellant.
Franklin Pierce, for respondent.

HARDIN, P. J. On the morning of the 30th of May, 1887, when plaintiff's testator received the injuries from which he died, he was at work attending a mason who was building walls for a room, and was at a point about 25 feet from the large boiler used by the defendant for running its machinery. Defendant's large boiler, which had been in use some 2 years, and was 66 inches in diameter and 16 feet long, containing 103 three-inch tubes, exploded, causing the death of plaintiff's testator. His body was found about 20 feet from where the front end of the boiler was when it exploded. Evidence was given tending to show that the boiler had been out of repair for at least four months before the time of the explosion. In January, one Osborn was called upon to repair the first horizontal seam on the right side of the boiler, looking from the front, which seam ran along underneath the

dome of the second section of the boiler. He repaired the whole length of the seam by "calking it." Upon attempting to use the boiler the calking was blown out, and some evidence was given tending to show that it was weakened along the seam. Thereafter, Adams was called, and again calked the boiler along the horizontal seam. The boiler was leaking steam, and it was difficult for him to make a firm job, and he used a testing tool, going along the seam, to stop the leaking. Osborn stated, as a witness, that the calking done by him "was not a good job." He made explanations, and attempted to show William Howard, the engineer, how to do the calking. Before Osborn left, he called upon Gleason,. one of the directors, and informed him that this seam in question was defective, and needed repair. Evidence was given tending to show that after the calking was done by Osborn and Adams the boiler continued to leak steam along the horizontal seam, more or less, down until the time of the explosion, and that Howard continued calking along the horizontal seam from January until the time of the explosion. During the trial a portion of the horizontal seam claimed to have been injured by the calking was brought be fore the jury, and the injuries thereto were pointed out by the witness Prof. Thurston, an eminent writer on the subject of boiler explosions, and he testified that the calking along the edge of the lap was not well done; also:

[ocr errors]

"The metal being chipped first by a chisel to a smooth even bevel from the upper to the lower surface of the sheet, and then the calking tool would be applied so as to produce a change in the thickness of that bevel, by forcing the iron on the lower edge against the iron on the lower sheet, so as to seal that leak. Improperly done, the calking would produce an irregular edge, such as is seen at this special point upon which I place my finger, where the iron has been forced back, and the straight line on the edge has been broken. and the edge of the sheets upset, and the metal forced in between it and lower sheet. The depth of the cut in the lower sheet, I should say from its appearance, as lying there on the table, was nowhere more than 1/16 of an inch, and in many places less. The tendency in that cut from expansion and contraction would be to produce a line of fracture, and the effect would be to produce a fracture such as is seen in bending a piece of tin along a certain definite line. *The calking is designed to close that seam, and prevent the leak, but this wedging action would open it still further." He also testified that an explosion only occurs where there is a general weakness along considerable line of space, and that he found such a line of weakness along the horizontal seam; and he added that the break from rivet to rivet would contribute to make this a general line of weakness, and cause the explosion. Other evidence was given tending to indicate that the horizontal seam had been badly calked, and the weakest part of the boiler was in the horizontal seam. When this action was before the court on the first appeal, (51 Hun, 188, 4 N. Y. Supp. 940,) in the course of the opinion delivered by Kennedy, J., it was assumed that the defendant "was required to exercise reasonable care and diligence to ascertain that the boiler was reasonably safe and fit for the purposes to which it was to be applied." Plaintiff's testator was entitled to "a safe and proper place in which to prosecute his work," and it was the duty of the defendant to furnish him such

a place; and the defendant is liable for a failure to discharge such duty, if the injury was occasioned by the nonperformance of such duty. Pantzar v. Mining Co., 99 N. Y. 368, 2 N. E. Rep. 24. The rule is repeated in Probst v. Delamater, 100 N. Y. 272, 3 N. E. Rep. 184, by Ruger, C. J., in the following language:

"The duty of the master to furnish safe, suitable, and sound tools, machinery, and appliances for the use of the servant in the performance of the work of the master, and to keep them in repair, is not an absolute one, and is satisfied by the exercise of reasonable care and prudence on the part of the master in the manufacture, selection, and repair of such appliances. This is a duty which cannot be delegated to a servant, so as to excuse the master from damages occurring through an omission to perform it; yet, when the master has exercised all of the care and caution which a prudent man would take for the safety and protection of his own person, the law does not hold him liable for the consequences of a defect which could not be discovered by careful inspection, or the application of appropriate tests to determine its existence."

The doctrine was again repeated in Fredenburg v. Railway Co., 114 N. Y. 582, 21 N. E. Rep. 1049, in which case it is asserted to be the duty of the master to use care to make the place reasonably safe for its employes. The rule is again approved in Dobbins v. Brown, 119 N. Y. 188, 23 N. E. Rep. 537, and it is there said the neglect must be proved by direct evidence, "or by proof of facts from which the inference of negligence can be legitimately drawn by the jury;" and it is added: "The mere fact that an accident occurred which caused an injury is not generally, of itself, sufficient to authorize an inference of negligence." In Butler v. Townsend, 126 N. Y. 110, 26 N. E. Rep. 1017, Finch, J., in delivering the opinion, says, "The rooms of a factory have been deemed 'places' for work, which the master was bound to make safe by the exercise of reasonable care." From these cases it is apparent that the duty that the defendant owed to the deceased was to use reasonable care and diligence to keep the place where he was required to perform the services in which he was engaged reasonably safe, and shielded from injuries like the one caused by the explosion. It is therefore the defendant's duty to keep its boiler in suitable repair, and in the discharge of that duty it became incumbent upon the defendant to make use of the proper instrumentalities in causing the repairs to be made. The trial judge submitted to the jury the question of whether the duty of keeping the boiler in proper repair was discharged; and incidentally, in that connection, he submitted to the jury to say whether the efforts of Adams, Osborn, and Howard to put the boiler in a suitable condition were the efforts of the defendant. Defendant, by delegating the per formance of that duty to Osborn, Adams, and Howard, made them its representatives, and for the time being they stood in the place of the defendant in the discharge of that duty. When this case was before us on the second appeal, (Sup., 15 N. Y. Supp. 405,) it was said, in the course of the opinion, that:

[ocr errors]

"The evidence was not sufficient to authorize the finding that Howard had sole charge, and it should have been so held as matter of law. Crispin v. Babbitt, 81 N. Y. 516. He was there as an engineer running the engine and boiler. There was a superintendent and an assistant, both of whom were

« PreviousContinue »