PETROLEUM IRON WORKS CO. v. BOYLE, 179 F. 433

KNAPPEN, Circuit Judge (after stating the facts as above). The considerations necessary to the determination of this case lie within a narrow compass. We shall set aside the plaintiff’s contention that the valve in question was of inadequate capacity, by reason especially of the strain to which it was subjected on account of vibration and heat, in addition to the strain due to the mere pressure of the air, for this contention becomes immaterial in view of its elimination from the consideration of the jury.

We shall also pass by without decision thereon the plaintiff’s further contention that a verdict should have been directed in his favor upon the ground that the knowledge obtained by the pipe fitter of the defective condition of the valve was the knowledge of the defendant. In view of the defendant’s concession that the valve was actually structurally defective, and was thus unsuitable for the purpose for which it was intended, we may likewise dismiss, as immaterial to this review, the testimony of an actual test by the manufacturers, as distinguished from the fact of their guaranty.

The duty of the defendant to exercise ordinary care in providing the plaintiff a reasonably safe place to work is unquestioned. The testimony supports the conclusion that by reason of the defective condition of the valve at the time of its installation the place provided by the defendant for the plaintiff to work in was not reasonably safe. That the defendant in fact made no inspection or examination of the valve before or in connection with its installation is likewise undisputed.

It is also undisputed that the valve in question was a standard and. reputable valve, made by a reputable manufacturer, and sold by a reputable hardware dealer under the manufacturer’s guaranty that it would safely stand a working pressure of 150 pounds, shown by actual test. It appears-by the record that, by reason at least of the paint on the outside of the valve, its defective condition was not apparent from a mere visual inspection of the exterior.

The testimony, however, tended to show that a merely visual inspection of the interior of the valve would have disclosed such condition as to at least impose upon the defendant the duty of further examination.

The defendant insists, however, that by such purchase from a reputable dealer of a standard valve, made by a reputable manufacturer under a guaranty of its sufficiency, it, as matter of law, discharged its whole duty toward the plaintiff with respect to the exercise of ordinary care in providing a safe place for the plaintiff to work, and thus was not bound to examine or inspect for any defects not discernible by visual inspection of the outside surface of the valve.

Upon the correctness of this contention the case must turn; for if defendant is right in this contention, a verdict should have been directed in its favor. The general rule with respect to the installation and use of a given machine or other

article is that an employer discharges his duty of exercising ordinary care to provide a reasonably safe place to work if he buys the machine from a reputable manufacturer, and uses ordinary care in inspecting it before using. But the question still remains : What measure of inspection does ordinary care require in the case of an

article so bought? It is the general rule that where there is no visible defect in a machine the purchaser is not negligent in failing to discover defects which were not discernible by the use of the usual tests. Railway Co. v. Toy, 91 Ill. 474, 33 Am. Rep. 57; Reiss v. New York S. S. Co., 128 N. Y. 103, 28 N. E. 24; Reynolds v. Merchants’ Woolen Co., 168 Mass. 501, 503, 47 N. E. 406. Nor is he guilty in failing to discover latent defects which ordinary care would not disclose. Cryder v. Chicago, etc., Ry. Co. (C. C. A., Eighth Circuit) 152 Fed. 417, 81 C. C. A. 559; Westinghouse Elec. & Mfg. Co. v. Heimlich (C.

C. A., Sixth Circuit) 127 Fed. 92, 62 C. C. A. 92. With respect to what is ordinary care, it has been held by this court as well as by the Supreme Court that ordinary care does not require the purchaser of a piece of machinery or other article, whether simple or complicated, to tear it to pieces in a search for hidden defects. Westinghouse Elec. & Mfg. Co. v. Heimlich, supra; Richmond & Danville R. R. Co. v. Elliott, 149 U. S. 266, 13 Sup. Ct. 837, 37 L. Ed. 728. The purchaser of an

article from a reputable manufacturer is thus justified in assuming, in the absence of anything to the contrary discoverable by ordinary tests, that the

article is properly made. But the assumption thus permitted is not absolute in the sense that it absolves from all duty of reasonable inspection, nor in any case does it relieve from an inspection as to defects discernible by superficial examination. Fenney v. York Mfg. Co., 189 Mass. 336, 339, 75 N. E. 733. In support of its proposition that the facts did not justify an allegation of negligence on its part, defendant relies especially upon the cases of Westinghouse Elec. & Mfg. Co. v. Heimlich, supra, and Richmond & Danville R. R. Co. v. Elliott, supra.

Neither of these cases, in our judgment, sustains the broad contention made by defendant. In the Westinghouse Case, which involved an allegation of negligence in the use of a derrick chain purchased by the defendant from a reputable manufacturer, the trial court had charged the jury that it was defendant’s duty to test the chain by subjecting it to sufficient weight to determine its actual strength. The court held this instruction error. Judge (now Mr.

Justice) Eurton there said: “The duty of examining for a defect thus discoverable grows out of the fact that the master is chargeable with knowledge of any defect in an appliance furnished his servant which was discoverable by the exercise of reasonable care.”. The defect in question was said to. be: “One which could not have been discovered by anything short of a test which would develop its existence by putting upon it a greater strain than the chain so defective would stand.

In other words, in order to determine whether the iron was in fact crystallized, it was necessary to break or cut into each link, for it was altogether possible that if one link was made from crystallized iron that others were also defective” It was held that: “Ordinary care does not require such tests as are appropriate only to the process of manufacture. Nor does it demand that the

article should be taken to pieces or subjected to any other test which is not shown to be practically efficient and in ordinary use by careful users.” In that case the chain in question had been many_tim.es examined for external evidences of defects, injury, or wear, and there was no reason to apprehend a latent defect. The rule as there stated by Judge Eurton is that “a purchaser of such an

article from a reputable manufacturer, with representations as to its tested strength and quality of material, is not responsible for hidden defects, which cannot be discovered by a careful external examination.” Railway Company v. Elliott, supra, involved the explosion of a boiler of a locomotive engine. Mr, Justice Brewer there said: “With regard to the defect in the .iron casting, which seems to have been revealed by the explosion, it may be said that it is not necessarily the duty of a purchaser of machinery, whether simple or complicated, to tear it to pieces to see if'there be not some latent defect.

If he purchases from a manufacturer of recognized standing, he is justified in assuming that in the manufacture proper care was taken, and that proper tests were made of the different parts of, the machinery, and that as delivered to him it is in a fair and reasonable condition for use. We do not mean to say that it is never the duty of a purchaser to make tests or examinations of his own, or that he can always and wholly rely upon the assumption that the manufacturer has fully and sufficiently tested.

It may be, and doubtless often is, his duty when placing the machine' in actual use to subject it to ordinary tests for determining its strength .and efficiency.” . , The controlling questions, as respects the case before us, are: First-, must the defect in question necessarily be held to be á latent defect which ordinary care might not discern ? and, second, does the requirement of “careful external examination” only necessarily exclude the duty to take note of the interior surface of a valve actually exposed or readily and naturally exposable to view in the process of installation?

We think these questions must be- answered in the negative. •A latent defecáis one which in point of fact is not patent. An “external examination” is not necessarily limited to the outer surface, as distinguishable from the inner surface of an open receptacle. One of the

definitions of the term “external,” as given by a standard lexicographer, is “Outward; exterior; ■ visible from the outside; hence, ■capable of.being-perceived; apparent.” As to the facts: Defendant contends that without removing' the valve seat the defective condition of the globular part of the valve was not discoverable. We cannot say that this is. necessarily so. The valve was but 12 inches long and the openings were of a diameter of 5 inches. If the valve gate were closed, the two chambers would be but 5 inches by 6 inches in dimensions.

We cannot say, from anything that appears in the record, that the condition testified to by the pipe fitter was not readily discoverable by mere visual inspection, without taking off the seat, and whether the gate was open or closed. Defendant further contends that the valve came from a reputable manufacturer complete, so that there was no-necessity to take it apart in installing it, and that no one representing the defendant knew that it was to be taken apart. The seat was, however, in fact removed because it was inconvenient to make the connection without removing it.

We think the jury were at liberty to infer that it would not unnaturally be removed in the process of installation, and that the defendant’s engineer might well so expect. Moreover, while the seat was off, the valve was for about an hour open to visual inspection. We cannot say that the jury had no right to infer negligence on the part of defendant’s engineer, who was supervising the installation, in failing under such circumstances, to observe the condition of the valve.

It is further contended that the pipe fitter did not testify strongly to seeing the defective condition; that he, at the most, testified to seeing an interiorly rough casting, and that the fitter did not himself think the condition dangerous. But it was proper to submit to the jury whether the condition testified to by the pipe fitter was such, as if seen, or by su,ch inspection as the defendant was bound to make would have appeared, was sufficient to- put the defendant upon further examination.

The fact that the pipe fitter .did not regard the condition as dangerous is not controlling, from the fact, which appears in the statement of the case preceding this opinion, that the fitter was unacquainted with the grades and character of iron.

It is further urged that the evidence does not indicate whether manufacturers using such valves do or do not test them, and that the court erred in referring to what manufacturers “ordinarily do do.” It must be remembered, however, that the defense of purchase and guaranty, as relieving from the obligation to make further tests, is made by the defendant, and it cannot well complain that the plaintiff has not shown to what extent such purchase relieves from the duty to inspect.

Finally, it is urged that defendant’s negligence is to be determined as of the date of the explosion, and that negligence on that date is not shown, from the fact that the valve had been tested by four weeks’ use without accident. O'f this contention it is enough to say that if the defendant neglected its duty in respect to the installation of the valve, it had no right to subject its employé to the dangers of a test by actual operation in the place provided for the employé to work.

We think that under the circumstances presented the court did not err in submitting to the jury the question whether the defect in question was a latent defect which ordinary care might not discern, nor whether ordinary care did not require, under the circumstances presented, at least a visual inspection of the interior of the valve. In our opinion the case was submitted to the jury under careful and correct , instructions. It follows from the views we have expressed that the defendant was not entitled to a direction of verdict in its favor, and that the case was properly submitted to the jury.

The judgment is accordingly affirmed.