Phillips v. Salem Iron Works

CoNNOR, J., after stating the facts: There can be no just criticism of his Honor’s charge, in so far as he defines the duty of the master to furnish to his servant a reasonably safe place to work and reasonably safe appliances with which to perform the service. Plaintiff contends that he should have gone further and told the jury that when a safety appliance in the operation of dangerous instrumentalities is known, approved and in general use, the standard of duty fixed by the law requires the employer to furnish such appliance to his employee; that the use of such appliance became the standard of duty in respect to the safety of the employee; in other words, in contemplation of law, the reasonably prudent man will furnish to his employee such appliances as are known, approved and in general use, rather than rely upon his own judgment of what is reasonably safe. In applying this principle, care must be taken to correctly define the terms “known, approved and in general use,” in respect to the extent and the time during which it is in such general use. The employer is not required to adopt every new appliance or invention which may be put upon the market. A sufficient number of persons for a sufficient length of time must be shown to have *214 approved and used tbe appliance to- test its value and efficiency to make it generally approved and used, witbin the .meaning of the term. It must further appear that such appliance is reasonably within the reach of the employer. Applying the rule to the admitted facts and to plaintiff’s evidence, we have, for the purpose of passing upon the exception, this case: Defendant, for the purpose of testing the capacity to resist the pressure of steam for the purpose for which it was made, attached the cylinder by means of an iron pipe one-half inch in diameter to a boiler, and, by turning the valve, the steam from the boiler rushed into the cylinder. The cylinder had a capacity to resist a pressure of 50 pounds. The test could be made by putting in it 10 to 15 pounds. The boiler had a generating capacity of 60 to 80 pounds of steam. The evidence tended to show that the valve was turned'one-fourth of an inch. On the pipe a gauge was set, and plaintiff was placed, for the purpose of discharging the duty imposed upon him, 8 or 10 feet from the gauge. At the end of the cylinder and at the point at which plaintiff stood was an appliance for turning off the steam if the gauge indicated too much pressure. This appliance was in charge of plaintiff. The cylinder exploded, as described by the witnesses, and injured plaintiff. Plaintiff insists, and introduced evidence tending to show, that the known, approved and generally used method of preventing an explosion of such a cylinder by reason of an excess of steam was a safety valve. His evidence tended to show that a steam gauge was not reliable. One witness said: “A man cannot constantly look at a gauge without his eyes getting so that the figures run together. Looking at a gauge five minutes, a man cannot tell one figure from another. A man cannot look at a gauge constantly at 10 and watch, it stand at 10 for five minutes and hold the pressure in, himself. It would not be safe to put any steam in there without having a safety valve.” On the other hand, the defendant introduced several witnesses who said that the gauge and arrangement *215 made for letting off tbe steam were safe and mucb better than a safety valve, giving reasons for their opinion. In this condition of the evidence the rule laid down by his Honor was clearly correct, and in this aspect of the case no just criticism can be made of the charge. But the plaintiff insists that he has gone further and shown, not only that a safety valve was the safer mode of letting off excessive steam, but that it was the method known, approved and in general use. The witnesses upon this point say that they have had experience in operating cylinders into which steam was put, and that it is usual to have a safety valve upon them; that this was the general custom. They explain by saying that if in any way a greater quantity of steam went into the cylinder than'the valve was “set for,” it would automatically open and the steam in excess of the quantity provided for would, as the witnesses say, “blow out.” If the jury should find as a fact that the safety valve upon such cylinders or similar vessels into which steam is put and which were subjected to pressure was known, approved and in general use as a safety appliance, we are of the opinion that the defendant owed to plaintiff the duty of using it; that is, furnishing such .appliance to plaintiff for his protection. In Empson Packing Co. v. Vaughan, 27 Col., 66, it appeared that a cylindrical apparatus called a cooker, made of iron, in which the vegetables previously canned were placed for the purpose of subjecting them to a sufficient degree of heat to complete the process of canning, was used. This was done by closing the cooker perfectly tight and turning in steam which was supplied from boilers through a pipe connecting the two. It was alleged in that case “that the explosion was due to the excessive pressure of steam confined in the cooker, which would have been avoided had it been provided with a safety valve so regulated as to allow the escape of steam upon reaching a pressure within the limits of safety, or the pipe connecting the cooker with the boiler had been equipped with a pressure regulator 'which would have auto *216 matically prevented the pressure exerted by the steam reaching beyond a fixed point.” Tbe Court says: “In some establishments safety valves were used; in others.only the thermometer and gauge used by appellant. * * * Which of these appliances was the one which the exercise of reasonable care and prudence would adopt? Steam has ever been acknowledged as a dangerous agency, the use of which results in accidents, even when the most approved safety appliances are utilized. The cooker was connected directly with the boilers, and was only capable of withstanding a much less degree of pressure than the steam generated in these receptacles usually exerted. It was designed to be used with a safety valve. The thermometer and gauge on the cooker would not instantly indicate the pressure of the steam within it. The steam was only controlled by a globe valve on the pipe through which it was conducted to the cooker. Before any warning of dangerous pressure would be indicated by the thermometer and gauge, an explosion might occur.” In that case there was no evidence that the safety valve was in general use; on the contrary, it appeared that both appliances were used. The Court held that the failure to furnish the safety valve was evidence of negligence for the jury. A verdict for the plaintiff was sustained. We do not hold in this case that the mere failure to furnish the safety valve as a safety appliance was, as a matter of law, negligence, but that if the jury find that it was known, approved and in general use, the failure to. do so would be negligence. The testimony upon this question is conflicting and was properly submitted to the jury. The error consists in failing to direct the minds of the jury to the effect which they should give to the failure of defendant to have the safety valve, if they further found that it was known, approved and in general use. The principle which this Court has adopted, and which we think correct, is thus stated by Mr. Justice Rohe in Bradley v. Railroad, 144 N. C., 555: “When the employees are en *217 gaged in the operation of mills and other plants having machinery more or less complicated and usually driven by mechanical power, in such case an arbitrary standard of duty has been fixed, and the employer is required to pi'ovide methods, placing, implements and appliances such as are known, approved and in general use,” citing Hicks v. Manufacturing Co., 138 N. C., 319; Horne v. Power Co., 141 N. C., 50; Fearington v. Tobacco Co., 141 N. C., 80. Defendant insists that no general use was shown. While it is true that the evidence does not show that others were engaged in the manufacture of cylinders or iron cans of the exact size, strength and character as the one in controversy, it does appear that when cylinders of similar kind, construction, etc., are in use, the known, approved and usual method of providing against danger from an explosion caused by excessive steam is to place upon them a safety valve, which, for the reasons given by the witnesses, would appear to be the most reliable safety appliance. It is impossible for courts to do more than apply the principles by which the duty of the employer is fixed to the cases as they arise. An examination of Labott’s work on Master and Servant and the elaborate notes, together with the encyclopedias, shows the almost innumerable decisions applying the general principles to particular cases. While the courts are not disposed to unduly burden the industries of the country by imposing unreasonable or impracticable demands upon the employer, yet it is their duty to so declare and enforce the law that the lives and limbs of employees are rendered as safe as reasonable care can secure. It is in accordance with a humane and sound public policy that employers be required to exercise the degree of care known, approved and in 'general use. To require this imposes no hardship upon them. We have so held, and the law in that respect has been crystallized into a statute that railroad companies must do so. Greenlee’s case, 122 N. C., 977; Troxler’s case, 124 N. C., 189. There was evidence *218 tending to show that tbe method of testing the cylinder in use at the time of plaintiff’s injury had been used for a long time without accident, and that it was not only reasonably safe, but to be preferred to the safety valve. It may be that the jury did not find that the safety valve was approved and in general use on such cylinders as the one by the explosion of which plaintiff was injured. If they had found otherwise, his Honor’s instruction did not permit them to give to such finding the effect of imposing the duty to furnish the safety valve. . It is this omission of which plaintiff complains. Defendant insists that the evidence, if believed, did not show a general use of the safety valve on such cylinders, citing Marks’ case, 135 N. C., 287. We think that there was evidence fit to be submitted to the jury upon the question. Of course, its weight and value were for the jury. Eor the error in the instruction in this respect there must be a New Trial.