I dissent from the majority opinion on the ■ground that the admission in evidence of the broken boiler "flue was improper and prejudicial to defendant. The negligence of defendant was found to consist in its using a boiler that had become “ pitted and grooved.” The “ weakened, worn, thin, cracked, broken, and insecurely patched ” flue is not claimed to have had anything to do with the explosion, and it therefore had no tendency to support the plaintiff’s case. Because the flue presented a weakened and • defective appearance, the jury might have been led to infer "that other portions of the boiler, not seen by them, were •equally unsafe. Eo such inference was proper, because it had no tendency to show the boiler plate was weakened or unsafe.
Giving the plaintiff an option to remit a portion of the ■damages, admitting that the evidence 'mentioned was not improper or prejudicial, is going beyond any precedent in the books. It comes so close to the line of usurpation by this court of the functions of the jury that I do not feel like sanctioning the precedent.
Dodge, J.I cannot persuade myself that the question of defendant’s care or negligence has been submitted to or passed upon by the jury in this case. The only questions . answered (both affirmatively) in the special verdict were — first, whether the explosion occurred by reason of pitting and grooving of the boiler shell; second, whether the defendant “ could ” have discovered such defects by reasonable care, tests, or inspection before the explosion. Defendant •offered evidence that it did not in fact know of such defects, *338which was rejected, and that it had exercised due and customary care in the way of inspection and repair within reasonable and customary time before the accident. Defendant’s liability depended on its negligence, not on the existence of defects. Of course, use of the appliance with knowledge of the defect, if obviously dangerous, would be negligence, but that is not in this case. Defendant accepted the burden of proof imposed on it by sec. 1816, Stats. 1898, and offered to disprove knowledge; and knowledge is not found by the verdict. So that the only remaining phase of negligence was the omission of reasonable and customary inspection or tests, as to which testimony was copiously introduced on both sides. So I think that question should have been submitted. If judgment may go against defendant upon the facts found in this verdict, the employer becomes an insurer against every defect in his appliances which could be discovered by an inspection or tests made the moment before an accident occurs, and the question of his due and reasonable care as to frequency of inspections is eliminated. I can see no reason why that is not an element of due care, just as much as is the thoroughness of the inspection when made. The question is, What precautions do ordinarily careful men exercise under like circumstances? A steam boiler cannot be, and in the exercise of ordinary care is not, disemboweled and its interior carefully examined every time steam is to be generated therein, but at intervals. The competent employee knows that, as well as the employer, and he takes the fisk of those defects which may develop and cause injury, notwithstanding such inspections at such intervals. Tie has a right to expect ordinary care, but that is all. In the light of what I have said as to the refusal of the court to permit the jury to find whether the defendant either knew of the defect or was guilty of any negligence in inspection to clis.-cover it, I think the question submitted and answered as to proximate cause was insufficient. Doubtless, where a *339defendant knows of such a defect as here existed, it is sufficient to find that defect the proximate cause of the injury; hut where it does not appear that he knew of it, and it is apparent that the defect has developed since the last inspection, the question whéther, in the light of experience and of the customs of others, such defect might reasonably have been expected to develop, so as to make a more recent inspection necessary, should have been passed upon by the jury.
I also concur in the views expressed by Mr. Justice Bardeen as to the impropriety of admitting in evidence the piece of flue.
Eor these errors I think the cause should be remanded for a new trial. If it were not for them I should concur in the conclusions of the court as to the propriety of allowing judgment to be entered for $1,000, at the option of the plaintiff, as a reasonably certain correction of the erroneous awarding of damages for the unproved injury to the spinal cord.