written report between them, which you will have out with you,-one being in a certificate signed by both of them, coming from the bureau of inspectors; and the other being a detailed report made by only one of them, who made a personal examination,— testifed that the boiler was a proper one, and that the appliances were proper, and such as you may regard as having been in ordinary use at that time. I call your attention to Mr. Moore's testimony, because he has said that which, if you believe it, will make it necessary that you shall find a verdict for the defendant. Mr. Moore has described to you the triangular plate, and its position when in proper position on the head of the boiler. It must have struck you, as you proceeded in your inquiry, before you reached the testimony of Mr. Moore, as a very remarkable thing that any machinist should put at the head of a boiler, and any engineer should use, an appliance so put by any machinist which was capable of turning by the mere twisting of a nut. How can it be conceivably possible that the plate of a boiler, whether of the ordinary old-fashioned use before tubular boilers were introduced, or a boiler made as tub ular boilers are, should be placed where their integrity and office depended upon one nut alone, and that a nut which might, by the operation of a wrench for an inappreciable distance upon the face of the boiler, cause an explosion or an emission of steam. I say it must have struck you as evidence of negligence which might be well described as gross that anybody would manufacture a boiler of that character. But when we came to hear the manufacturer himself describe this boiler we found that such was not the case, and that, if we are to believe this gentleman, we may conclude that that plate which was put there at that time if properly put in position, was as firmly placed and as safe as any other plate or any other boiler, providing that the same is in the ordinary condition which a good boiler for proper use should be in. Mr. Moore testified that this triangular plate was provided with what he called a 'seat.' You will have to find what was meant by a seat, but it would appear from the testimony that a scat is perhaps a depression in the header, into which the plate would, to a certain extent, sit or move when it was properly screwed up against the head of the boiler; and, if such is the case, then you would find that a plate thus properly screwed up would be in a depression in the head of that boiler. It would be in a seat, as Mr. Moore has said, from which it would be impossible to move it by adding pressure to the head of the boiler, because any such pressure would only make it more firm in its seat; and while you are going through the operation of adding that pressure, you certainly would not enable it to move away from the seat, or socket, or depression into which it was originally set. Mr. Moore, therefore, if you believe that part of his testimony, has indicated that which would make it impossible for you to conclude that there was any negligence in the use of this plate, assuming it to have been in its proper position. But he has also told you more than that. He has told you that this boiler head comprises several of these plates (I think he said a dozen in this boiler), and that the plate which did move (and there is no doubt about that, that one of these plates did move) could not have seen in position, because, if in position, not only would it have been in this seat, but it would have been in such position relatively to the plates on either side of it in that bottom row of plates that there would not have been sufficient space between the edge of this plate and the edge of the other two plates to enable it to move sufficiently far to create the vent through which the steam that produced the accident came. You will understand that, I think, without my say. ing more about it. These plates, if they were imbedded in their several seats in the proper way, according to the design of the patentee, could not have been moved by the effort to tighten them up, because that effort would have made them go further into their seat; and, assuming that Mr. Moore was mistaken in that, they could not have moved sufficiently to create this vent, because that would have required a movement to the extent of three quarters of an inch. I think he said, and the only shifting allowed by reason of the proximity to the other plates would have been about a quarter of an inch. Therefore, if you believe what Mr. Moore has said, you are bound to find a verdict for the defendant, because there was thus in use a boiler as to which there could not be any reasonable complaint made of this one plate growing out of the fact that it was triangular in form. If, however, you consider that it is your duty to proceed further, I instruct you that, should you find that the plate was not such as was in ordinary use by the light of my instructions, you are then to determine the two points to which I have already adverted: First, whether or not the engineer, by his manner of working on that nut with the wrench, negligently caused that plate to turn; and, if you find that he did, and that this accident would have been avoided had he used reasonable care at that time, then your verdict must be for the defendant. "Now, it has been suggested on the part of the defendant that it must be that this man, Mr. Rubner, made a mistake. He, meant to do his duty. He meant to do an entirely proper thing, but it has been suggested to you with some force, in view of the proofs, that he must have made a mistake, and that, instead of working the wrench in a direction to give a motion of that nut towards the boiler, he worked it the other way, and really loosened the plate himself. Without admitting it at all, the plaintiff says that, even if that is so, it would be the result of confusion on his part, due to the crisis, to the sudden fear that something was going wrong, and that the law would not visit him with the consequences of that. I instruct you that if this gentleman did, by the use of that wrench, cause the loosening of this plate, it was while entirely innocently done on his part, such negligence in law as would preclude a recovery here; that there was not such a condition or crisis of danger as would justify your overlooking that which you found othewise to have been negligence. therefore, this accident was due to that, you must find a verdict for the defendant. You must also consider the fact that this leak, as it originally appeared may have been due although it will be for you to say upon the proofs whether it was or not to the imperfect resetting of that boiler after the inspection of August 28th. It was inspected on August 28th, and the accident happened on August 31st. The engineer who was then in charge has testified that it was taken apart, and these plates taken off on the 28th, and that he himself put it together again afterwards. He said he oiled up the nuts, and cleaned up the plates of the boiler, and saw it in clean condition after the inspection, as he put it up. If it is a fact that he put it up negligently, so that, with regard to this plate in question, he did not put that into its seat, assuming that you find it had a seat (and that will be for you to say, depending upon your weighing the evidence and the credence you may give Mr. Moore), if there was such a seat there, or whether there was one there or not; if he did not adjust that plate correctly when he set that boiler in the manner he testified to doing it, -setting it in order after the inspection, then the defendants could not be charged with the consequences of this accident; and you would have to find a verdict in their favor. mitting its continued use on his premises, to use such a degree of care as you would find to be the duty of an ordinarily careful man under the circumstances. Now, you may conclude from the proofs, though it will be for you to conclude one way or the other, that this boiler was regularly inspected from the time of its purchase down to the time of the accident, in each year. It was purchased in 1888. The proofs would justify your concluding that it was inspected at least once a year in the interval between the purchase and the accident. You may conclude otherwise. But you cannot help finding, because it is undisputed, that it was inspected by officials of the city on the 28th of August, 1893, just three days before the accident. As I have already said to you, the measure of care required of Mr. Shoneman being that which you would require of an ordinarily prudent citizen in the conduct of his business,-such a business as this, needing the use of a boiler and engine, If.what are you to conclude in this case? The system of boiler inspection is one which is created for the safety of the public, both individuals and the general public; and, if you find such a system in existence in this city (and you are bound so to find, because the legislative creation of the system is before you, and it is not disputed), then you are to consider that there has been established by general consent (that is to say, by the citizens of this state) a certain measure of care. Citizens say by their legislation, 'You must have your boilers examined, and you must have skilled men appointed to examine them; and if those skilled men are of the opinion that your boilers are all right, people may go on and use them, and if they are of the opinion that they are defective, in any particular, people may not go on and use them.' Now, what more could Mr. Shoneman do, if he was proceeding to buy a boiler, or proceeding to use one that he had bought some time before and if he desired most earnestly to know that the boiler was one which could be used with ordinary safety in his establishment, than have it inspected by skilled inspectors, and have it passed upon? And if you find that in this case he did so do, and that there was a proper official inspection of that boiler, and that the report thereon was that it was such a boiler as might, not only as a whole, but with regard to its several appliances (among others, with regard to these triangular plates, this one plate in question), be used by an ordinarily prudent man, you are bound to find a verdict for the defendant. On the other hand, if you find that the engineer was not guilty of negligence leading to the accident, then. if you also find that the plate was not such "Lastly, I have to charge you upon the effect of the official inspection of this boiler, so far as it would operate to relieve Mr. Shoneman, if it would operate at all, from responsibility in the premises. As I have already told you, Mr. Shoneman was bound, in the purchase of this boiler, and in per If the boiler was in ordinary use, that is conclusive of its safety. Kehler v. Schwenk, 144 Pa. 348, 13 L. R. A. 374, 27 Am. St. Rep. 633, 22 Atl. 910; Keenan v. Waters, 181 Pa. 247, 37 Atl. 342; Fick v. Jackson, 3 Pa. Super. Ct. 378. The burden of proof was on the plaintiff to show that the Moore boiler was not in ordinary use. Titus v. Bradford, B. & K. R. Co. 136 Pa. 618, 20 Am. St. Rep. 944, 20 Atl. 517. If the Moore boiler was in ordinary use, it is wholly immaterial that other boilers were safer, or better constructed and less dangerous, because an employer is not bound to adopt the newest or latest improvements. as was in ordinary use, and that the in- | 618, 20 Am. St. Rep. 944, 20 Atl. 517; Reese spection was not adequate and by official v. Hershey, 163 Pa. 253, 43 Am. St. Rep. city authority, you may find a verdict for 795, 29 Atl. 907. the plaintiff. Should you find a verdict for the plaintiff, the measure of damages would be the pecuniary value of the life of this unfortunate man. In order to determine what was the pecuniary value of his life, you are to consider his age at the time of his death, which was somewhat less than thirty-three years. You are to consider the probable duration of his life, in view of the proofs of the condition of his health at that time, and the probabilities of his remaining in good health. You are to consider the vicissitudes of illness and accident which might terminate his life earlier than in the ordinary course of nature it would terminate; and you are to consider his earning power, assuming him to live for the period of time which, under the proofs and my instructions,' you believe he would have lived, and what that would represent in money that he would have earned in that time; from which, however, it is necessary that you should deduct a proper allowance which must be made for his own support had he continued to live, because, obviously, that would not be for the benefit of his family. You will not make any attempt to capitalize any money which you believe he would have made had he continued in life. The fact that he left a family is a fact which is before you; but that has no bearing upon your estimate of the damages which you should allow. It appears that, unfortunately, he has left two children and a widow; But, had he left a dozen children, it would have had no other bearing on this point. It cannot affect your determination of the value of his life. Of course, in reaching your conclusion you will endeavor, without sentiment, and with a conscientious recognition of your duty, to settle these various problems that I have put before you, running down into the one problem as to the propriety of that triangular plate, dispassionately, and according to the proofs." Payne v. Rcese, 100 Pa. 301; Delaware River Iron-Ship Bldg. & Engine Works v. Nuttall, 119 Pa. 149, 13 Atl. 65; Northern C. R. Co. v. Husson, 101 Pa. 1, 47 Am. Rep. 690; Allison Mfg. Co. v. McCormick, 118 Pa. 519, 4 Am. St. Rep. 613, 12 Atl. 273; Lehigh & W. B. Coal Co. v. Hayes, 128 Pa. 294, 5 L. R. A. 441, 15 Am. St. Rep. 680, 18 Atl. 387; Pittsburgh & C. R. Co. v. Sentineyer, 92 Pa. 276, 37 Am. Rep. 684; Faber v. Carlisle Mfg. Co. 126 Pa. 387, 17 Atl. 621; Keenan v. Waters, 181 Pa. 247, 37 Atl. 342. The employer has the right to select any one of several machines or appliances in ordinary use that he considers best suited to his purpose; and he cannot be held liable for the exercise of his judgment, even though it may turn out to be erroneous. Dooner v. Delaware & H. Canal Co. 171 Pa. 581, 33 Atl. 415; Kehler v. Schwenk, 144 Pa. 348, 13 L. R. A. 374, 27 Am. St. Rep. 633, 22 Atl. 910; Harley v. Buffalo Car Mfg. Co. 142 N. Y. 31, 36 N. E. 813; Richards v. Rough, 53 Mich. 212, 18 N. W. 785; Georgia P. R. Co. v. Propst, 83 Ala. 518, 3 So. 764; Washington Asphalt Block & Tile Co. v. Mackey, 15 App. D. C. 410; Reese v. Hershey, 163 Pa. 253, 43 Am. St. Messrs. Joseph H. Taulane and Rich- Rep. 795, 29 Atl. 907. ard P. White, for appellant: Defendant was only bound to exercise ordinary care and diligence to furnish a reasonably safe and proper boiler; and he was under no absolute duty to furnish a safe boiler. Peoria, D. & E. R. Co. v. Hardwick, 48 Ill. App. 562; Doyle v. White, 14 Misc. 417, 35 N. Y. Supp. 760; Probst v. Delamater, 100 N. Y. 266, 3 N. E. 184; Louisville & N. R. Co. v. Allen, 78 Ala. 494. The test of ordinary care and diligence is whether the boiler was in ordinary use. Titus v. Bradford, B. & K. R. Co. 136 Pa. A master who purchases a machine or appliance from a reputable manufacturer has fulfilled his full duty to furnish safe and proper machinery to his employees. Ardesco Oil Co. v. Gilson, 63 Pa. 146; Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185, 36 Am. Rep. 662; Carlson v. Phœnix Bridge Co. 132 N. Y. 273, 30 N. E. 750; Shea v. Wellington, 163 Mass. 364, 40 N. E. 173. The law presumes that public officers perform their duty; and, in fact, it presumes that everyone performs his duty until the contrary is shown. Mansfield Coal & Coke Co. v. McEnery, | 65; Bannon v. Lutz, 158 Pa. 166, 27 Atl. 91 Pa. 185, 36 Am. Rep. 662; Oglesby v. 890; Folk v. Schaeffer, 186 Pa. 255, 40 Atl. Missouri P. R. Co. 150 Mo. 137, 51 S. W. 401. 758. The burden of proof was on the plaintiff to show that the inspections were inadequate. Racine v. New York C. & H. R. R. Co. 70 Hun, 453, 24 N. Y. Supp. 388; McGregor v. Reid, M. & Co. 76 111. App. 610; Patton v. Texas & P. R. Co. 37 C. C. A. 56, 95 Fed. 244; Bucher v. Pryibil, 19 App. Div. 126, 45 N. Y. Supp. 972; Alaska Treadwell Gold Min. Co. v. Whelan, 168 U. S. 86, 42 L. ed. 390, 18 Sup. Ct. Rep. 40; Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185, 36 Am. Rep. 662. Messrs. Charles Goldsmith, Maxwell Stevenson, and Thad. L. Vanderslice, for appellee: The duty is on the employer to furnish his employees reasonably safe appliances with which to do the work assigned to them. It is also his duty to know what appliances are suitable and in common and ordinary use for the purpose. Bannon v. Lutz, 158 Pa. 174, 27 Atl. 890. We find in the possession of the defendant a defective and unsafe boiler, made so by reason of the use of a plate not used anywhere else, and used, according to the testimony, upon only one or two boilers, such as the defendant had. Having shown that this contrivance was not in ordinary use, and having shown, also, that there were other appliances or contrivances which, if applied to this cap or plate, would have rendered it perfectly safe, the burden then shifted to the defendant to show what he attempted to show in his defense, and that was: (1 That the engineer did a careless thing in attempting to screw up the plate under pressure; (2) that the plate and boiler were in ordinary use; (3) that he had done all that a prudent man could do to determine whether this was a safe boiler or not; (4) the inspection by the city officials relieved him. Where there is conflicting testimony as to the reasonable safeness of the appliances, etc., the question is for the jury. Philadelphia, W. & B. R. Co. v. Keenan, 103 Pa. 124. Where there is any evidence of negligence on the part of the defendant it must be submitted to the jury. The inspection of the officials, unless adequate and proper, rose no higher than any other inspection by servants of the employer, and at any rate was properly submitted to the jury upon the question of whether the employer had exercised due care. Flike v. Boston & A. R. Co. 53 N. Y. 549, 13 Am. Rep. 545; Booth v. Boston & A. R. Co. 73 N. Y. 38, 29 Am. Rep. 97; Mehan v. Syracuse, B. & N. Y. R. Corp. 73 N. Y. 585; Fuiler v. Jewett, 80 N. Y. 46, 36 Am. Rep. 575: New York, L. E. & W. R. Co. v. Bell. 112 Pa. 400, 4 Atl. 50; Lewis v. Seifert, 116 Pa. 628, 2 Am. St. Rep. 631, 11 Atl. 514; Smith v. Hillside Coal & I. Co. 186 Pa. 28, 40 Atl. 287. Dean, J., delivered the opinion of the court: The defendant is a merchant in the city of Philadelphia, using steam power in conducting his business. On the 31st of August, 1893, plaintiff's husband, Thomas Service, was killed, not exactly by a boiler explosion, but by the sudden and unusual escape of steam in great force and large volume from the end of the boiler. At the time of the accident the boiler and engine were in charge of one Rubner, a competent engineer. Service, the deceased, was a sort of porter or "all around man" in the establishment. At the exact time of his death he was helping the engineer in the boiler room. From the testimony of the engineer, who is the only living witness as to how the accident occurred, the boiler and all its attachments were in proper order in the morning when the fire was kindled. About 11 o'clock in the forenoon he heard a hissing noise, as if of escaping steam, in the end of the boiler, where was a three-cornered plate covering three of the boiler tubes, and secured by bolt and nut. He discovered a small jet of steam, about the diameter of a lead pencil, escaping from one side of the plate, which to him indicated the plate was loose. At his request, Service handed him a wrench, wherewith, by screwing down the nut on the bolt, the plate would be made tight. As he turned the wrench, the threecornered plate, instead of tightening, turned around with the wrench, greatly enlarging the aperture, whereby the steam escaped with great force in large quantity, severely, though not fatally, scalding the engineer, but Serv Murphy v. Crossan, 98 Pa. 495; Philadelphia, W. & B. R. Co. v. Keenan, 103 Pa. 124; Spear v. Philadelphia, W. & B. R. Co. 119 Pa. 61, 12 Atl. 824; Kohler v. Pennsyl-ice so badly that he died in twenty minutes. vania R. Co. 135 Pa. 357, 1 Atl. 1049; Glossen v. Gehman, 147 Pa. 619, 23 Atl. 843; Cougle v. McKee, 151 Pa. 602, 25 Atl. 115; Walbert v. Trexler, 156 Pa. 112, 27 Atl. The plaintiff, alleging that defendant had furnished a dangerously constructed boiler, and one not in ordinary use, brought this suit for damages. The learned judge of the cellencies and superiority. He paid a higher price for it than many others were offered for. Moore gave him the names of a large number of persons who had bought and were then using the boiler. He then employed Rubner, a competent engineer. This is conceded by plaintiff. He ran the boiler and engine for about three years, or up to the date of the accident, without complaint as to its safety. It was operated for nearly four years afterwards, when it was sold, only because a larger one was needed. Moore, from whom the boiler had been purchased, had a large experience in the use of boilers, and then invented this pattern. He testifies that he recommended this boiler to Shoneman as the only nonexplosive boiler then in use; that it was used all over the United States, and to some extent in Europe; that at the date of the purchase there were twelve, and at the date of the accident eighty-three, of the same type called, court below, in a charge admirable for its lucidness, as well as exhaustiveness, in that it presented impartially every question which could be raised on the evidence, submitted the case to the jury to find whether the construction of the boiler, as to this plate and the method of attachment, was such as was in ordinary use, and had been inspected while in use with ordinary care; saying to them, if they found against defendant in these particulars, they might find a verdict for plaintiff. There was a verdict for plaintiff in sum of $5,000, and from the judgment entered on it we have this appeal by defendant, with five assignments of error. No one of them is of sufficient merit to warrant discussion, except the fifth, which asks the court, under all the evidence, to direct a verdict for defendant. The case is a close one. We have most carefully considered the evidence in all its bearings, and the law that applies to it, and have concluded that to permit the judg-in use in Philadelphia and vicinity; that ment, under the undisputed or established facts, to stand, would fix a precedent practically imposing on the employer the responsibility of an insurer of his employees against accident. However varying may be the rule in some other states, in this it is settled. Take the rule as stated by our Brother Mitchell in Titus v. Bradford, B. & K. R. Co. 136 Pa. 618, 20 Am. St. Rep. 944, 20 Atl. 517. He says: "Absolute safe ty is unattainable, and employers are not insurers. They are liable for the consequences, not of danger, but of negligence: and the unbending test of negligence in methods, machinery, and appliances is the ordinary usage of the business. No man is held by law to a higher degree of skill than the fair average of his profession or trade; and the standard of due care is the conduct of the average prudent man." For this rule he cites not less than six of our own cases which preceded it, and certainly not less than ten have followed; the latest being Keenan v. Waters, 181 Pa. 247, 37 Atl. 342. Of course, a steam boiler is dangerous, even if of the very best construction. All that can be hoped for is that the danger shall be minimized by care in construction and use. Take the undisputed facts as to the care exercised by the owner in the selection of this boiler. When he bought it, three years before the accident, he inquired of a large number of business men who had knowledge on the subject as to the best boiler, and came to the conclusion to see Edward J. Moore, who was said to sell a nonexplosive boiler which he had invented. He sent for Moore, who came. He determined to take this one, after Moore had pointed out its ex the boiler was perfectly safe, and that he |