Innes v. City of Milwaukee

Cassoday, C. J. This case was here upon a former appeal. 96 Wis. 170. The defendant’s contract with the E. P-. Allis Company required that company, among other things, to construct the “ steam piping to connect with engine and the necessary stop valves, all as per your [the city’s] specifications.” Those specifications were furnished by the city’s-engineer prior to the letting of the contract for the construction of the boilers. They required the boilers to be made of the best quality of homogeneous boiler plate; and the586 coupons attached to the plates, to be used iu the construction, to show a tensile strength of from 88,000 to 60,000 pounds, with an elongation of not less than twenty-two per cent., and a reduction of area of fifty per cent.; the boilers to be ■double-riveted throughout; each boiler sixty-six inches in diameter, eighteen feet long, with fifty-five four-inch tubes; steam dome twenty-two inches in diameter by forty-eight inches high. These boilers were constructed' and put into position under the inspection of the city’s chief engineer, who acted as special inspector for the city in charge of the work. The steel plates of the boilers were ArV of an inch in thickness. Such connection of the boilers with the common main steam pipe, mentioned, and the cast-iron elbow, mentioned, were placed in position under such inspection and supervision of the city’s chief engineer. The negligence complained of, and found by the jury, consists in the fact that such engineer allowed the E. P. Allis Company to use a cast-iron bend or elbow, of one fourth of an inch in thickness, to be attached by being screwed into the wrought-iron pipes by threads, and going to form what is known or called the “ blow-off ” pipe. It appears that the general specifications furnished by the defendant make no reference to blow-■off pipes, and the specifications furnished by the E. P. Allis ■Company gave no details as to blow-off pipes whatever, ■Obviously, it is not the case of an appliance furnished and work performed by an independent contractor. Nor is it the case of a completed tool or appliance furnished by a reputable dealer. On the contrary, it is, so far as the elbow in question is concerned, the case of an appliance furnished ■by the defendant. It is conceded that the blow-off j>ipe was sufficient for low pressure, but it is contended that such cast-iron elbow was, to an expert, obviously, insufficient for the high pressure to which it was subjected. There is expert testimony tending to prove, in effect, that a competent expert would have known, by looking at the [587] elbow, that it was made of cast iron, and not over one fourth of an inch thick, from the flange; that, being so light and on the dead end, it would be unsafe and dangerous; that a cast iron elbow like that would be broken by three blows, while a wrought-iron elbow might be pounded a week without splitting it; that cast iron, when exposed to sudden and severe changes in temperature, has no definite limit of elasticity — no specific expansive properties that can be relied upon; that it may expand and contract without breaking, but the liability is that it will break; that it has comparatively no ductility, whereas wrought iron is malleable and ductile — it will strain and expand, but will not break, like cast iron; that the difference between them, with reference to being affected by changes of temperature in the position in which this elbow was placed, where it was exposed to the draft when the doors were open and in feeding the fire, is that cast iron has a tendency to crack by sudden changes of temperature, while wrought or malleable iron would be unaffected by the same changes of temperature; that such elbows were not considered reasonably safe under a pressure of 125 pounds to the square inch; that at the time of the explosion in question the pressure under the boiler, as shown on the gauge, was 124 pounds to the square inch. According to the dictionaries, the difference between wrought iron and cast iron consists in the fact that wrought iron is ductile and malleable, owing to the absence of carbon and other materials, while cast iron is neither ductile nor malleable, by reason of the presence of carbon and other materials. "We are forced to the conclusion that expert evidence was admissible upon the question as to whether the cast-iron elbow, with the pressure to which it was subjected, was reasonably safe, and, if unsafe, whether its dangerous condition was so obvious as to have been observable by the defendant’s expert, had he exercised ordinary care. ¥e are, moreover, forced to the conclusion that the evidence is sufficient to sup [588] port the verdict upon the merits. We perceive no conflict between the third and fourth findings of the jury mentioned in the statement. The only error we find in the record is that the damages are excessive. The plaintiff was fifty-four years of age at the time of Alexander’s death. She had six other sons, whose ages at that time ranged from twelve to twenty-two years. Alexander was unmarried, and lived with the plaintiff, and had his board, washing, lodging, and mending, and paid his mother therefor $5 per week. Of course, the plaintiff is only entitled to recover for her actual pecuniary loss. After carefully considering the evidence in the most favorable light for the plaintiff, and in view of her advanced age, we think .she should not be allowed to recover more than $1,500. By the Qov/rt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial, but with the option on the part of the plaintiff, to be exercised within thirty days after filing the remittitw, to remit, in writing, from the verdict, all damages in excess of $1,500, and file such remission with the clerk of the trial court, in which event judgment is to be entered thereon in favor of the plaintiff for $1,500 damages, and the costs and disbursements in the circuit court. MARSHALL, J., dissents.