Fryer v. St. Louis-San Francisco Railway Co.Fryer v. St. Louis-San Francisco Railway Co.
negligence as a matter of law. In view of the fact that the sufficiency of the evidence to show user of the track was not challenged, evidently the writer of the former opinion took the statement of witnesses that the employees crossed over and through the ‐‐Q‐‐ yard as meaning that they went upon and over the tracks while crossing the yards. The sufficiency of the evidence on the question of user of the track is seriously challenged on the present appeal. We have carefully examined the abstract of record in both appeals and do not find in either record any evidence that the employees of defendant or the employees of other railroads in that vicinity ever went upon and over the tracks while crossing the yard in going to and returning from their places of work. For these reasons, the holding in the former opinion that plaintiff made a case for the jury, is not controlling on this appeal.
Our holding that defendant’s demurrer to the evidence should have been sustained, obviates the necessity of discussing other questions raised.
The judgment should be reversed. It is so ordered. All concur.
Hamlin & Hamlin and Sizer & Gardner for respondent.
HYDE, C.—This is an action based upon violation of the Federal Boiler Inspection Act,
“3. Plaintiff‘s said husband, in the line of his duties and in the
course of his employment, left the defendant‘s terminal at Springfield, Missouri, for Muskogee, Oklahoma, as engineer on locomotive engine No. 384, then and there being used and operated by defendant in pulling its westbound passenger train No. 1 between Springfield and Muskogee aforesaid; that said engine No. 384 was a large passenger engine, and was equipped with a reverse lever located near the engineer‘s seat box, for use by the engineer in handling and controlling said engine and the speed and power thereof; that said lever was a large steel bar, four or five feet in height, set in a perpendicular position, with a quadrant with notches thereon for holding said lever in proper position, so that when it became necessary for said lever to be moved either forward or backward on said quadrant it was necessary for the engineer to release the catch on said lever and the attachments thereto from the notches in said quadrant, by taking hold of said lever with his hand or hands, at the top end thereof; that said lever was located immediately back of the head of the boiler, and was so constructed that the same could be moved either backward from, or forward towards the head of the boiler, and had to be so moved in the operation of said locomotive. “4. Plaintiff further states that said locomotive was equipped with a Baker valve, which was attached to said reverse lever at the lower end thereof and which was a part of the appurtenances and appliances of said locomotive and boiler; that said Baker valve was attached directly to the valve stem, and connected with said reverse lever, so that when said locomotive engine was in operation and working steam and pulling its load there was an immense pressure directly against and upon said lever, so that while said locomotive was in operation and pulling its load, said lever when released from the notches in the quadrant, by the engineer, as aforesaid, on account of the pressure and force exerted thereon by reason of the Baker valve arrangement as aforesaid, and by reason of its defective and unsafe condition, would suddenly move and jump forward with great force and violence.
“5. Plaintiff states that said locomotive engine was not equipped with an air reverse, as such engines are customarily, and should be, equipped; that an air reverse is an attachment or appliance modern and in customary use on locomotives, which if attached to the Baker valve appliance and lever, controls and operates said lever by air, so that when the same is released from the notches in the quadrant aforesaid, the movement of said lever forward or backward is controlled and held in check by means of an air valve, so that the same will move steadily, easily and under control of the engineer; but when not so equipped with an air reverse, the said lever when released from its notches upon the quadrant aforesaid, will as heretofore stated, move and jump forward with great force and violence while said locomotive engine is in operation and pulling its load: (and
particularly will move suddenly and jump forward with great force and violence when the Baker valve attachment is defective and out of repair, as herein set out). (Italics and parentheses ours.) “6. Plaintiff states that on the early morning of said date, while her said husband was running and operating said engine No. 384, as the engineer thereof, pulling defendant‘s fast westbound passenger train No. 1, and when the same reached and was upon a certain hill or grade in defendant‘s track near Verona, Missouri, it became necessary in the course of operation of said engine for plaintiff‘s said husband to move said lever; and in order to move the same either forward or backward it was then necessary for plaintiff‘s said husband to release said lever from the notches in the quadrant thereof: and plaintiff states that while her said husband was seated upon his seat in the cab of said engine, with his feet projecting towards the head of the boiler, and while said locomotive engine was running and pulling its load, he thereupon took hold of the upper end of said lever with his hand, or hands, and released same from one of the notches in said quadrant so as to move said lever; and plaintiff states that when he did so, by reason of the force, pressure and power exerted upon said lever as aforesaid by said Baker valve, and by reason of its defective and unsafe condition as herein set out, the same was thereby instantly moved and jerked forward with great force and violence, while plaintiff‘s said husband had hold of same with his hand, or hands, so that then and thereby the upper portion of the body of plaintiff‘s said husband was suddenly and violently jerked forward by said lever while he was seated as aforesaid in the engineer‘s seat, and that the said lever struck and caught one of his legs between said lever and the boiler head.” (Plaintiff seems to plead that, if not equipped with an air reverse, the lever would jump forward whether defective or not.)
The petition then makes five separate charges of negligence, four of which relate to the failure to have the engine equipped with the air reverse attachment above described and the other being as follows:
“(b) And, in that said Baker valve attachment was defective and the valves thereof were defective, insecure and unsafe, and were not in proper working order; which said defects and insufficiencies thereof cannot be more specifically set forth herein because the same are unknown to this plaintiff.”
Defendant moved to have the petition made more definite and certain to point out what defects were claimed other than the failure to have an air reverse. After this motion was overruled, defendant answered setting up both a general denial and affirmative defenses. When it came to submitting the case, plaintiff abandoned all of its assignments concerning the failure to equip the engine with the air reverse attachment and in instructions hypothesized as negligence
“And if you further find that the said reverse lever gears, valves, attachments and bearings thereof were then in a defective condition, and that by reason thereof when the deceased released and undertook to move said reverse lever, the same suddenly jumped forward and caught and broke the deceased‘s leg, and otherwise injured him; and, if you further find and believe from the evidence that by reason (and on account of the defective and inoperative condition of said locomotive, as aforesaid, if you find the same was in a defective and inoperative condition, the said locomotive was not in proper condition and safe to operate) in the service and use to which the same was then being put; then the defendant was guilty of negligence.” (It is obvious that if a thing is in a defective condition it is not in a proper condition, but how can there be a defective condition without a defect? That seems to be the missing link in this case.)
The jury‘s verdict was for plaintiff on the first count for $10,000, and on the second count for $5,000. From the judgment entered thereon, defendant has appealed. Apparently, the events leading up to the injury of engineer Fryer were about as related in the petition. However, plaintiff‘s evidence only showed that the fireman in the engine with Fryer was sanding the engine with his back turned to him; that the train was going up a hill, running from forty-five to fifty miles per hour, when he heard Fryer cry out “Oh;” and that he turned and saw Fryer in his seat, on the right side of the engine cab, where he had been before the fireman turned away, with the inside of his left foot against the boiler head and the reversed lever against his ankle, holding it against the boiler head. The fireman tried to pull the lever back but could not do so, until they slowed the train down to about twenty miles per hour. Fryer‘s ankle was broken, but he ran the engine to Monett, a distance of six or eight miles from where he was injured and forty miles from Springfield. There he was relieved by another engineer. The fireman further testified that Fryer had moved the lever forward on hills, on this trip, four times before the accident, and that “it didn‘t go in the corner or get out of control in any way.” The engineer who relieved Fryer, thereafter, on the run, also had occasion to move the reverse lever forward to maintain speed while traveling up grade south of Venita, Oklahoma. The train was then running from fifty to sixty miles per hour and, knowing about Fryer‘s accident, this engineer had the fireman help him attempt to move the lever a few notches. They both said that they were unable to hold it and that it went all the way forward, or as they described it, “it went over in the corner with us.” They could not move it back until they slowed the train to about twenty miles per hour. The fireman “looked over this engine at Monett . . . examined this valve
In addition to the testimony of this engineer and fireman, plaintiff had the testimony of a discharged locomotive inspector of defendant. He explained that an engineer, in order to maintain his speed up grade, would move the reverse lever forward two or three notches, which would let more steam into the cylinders by increasing the valve openings; that this was similar to changing gear, going from second to low, in operating an automobile; that the reverse lever was operated like the emergency brake of an automobile; that the lever was connected with the valve by a number of rods with connections and bearings on each side of the engine; and that “there are ten or twelve connections and bearings in this reverse lever and its attachments that work and operate when you move this lever.” He then testified, concerning the cause of the unusual movement of the reverse lever observed by the engineer and fireman, as follows:
“Q. I will ask you to state what will cause the reverse lever to jump forward and go in the corner, as you call it? A. Well, the main cause would be wear in those bearings. Q. To what extent will these bearings have to become worn, these ten or twelve bearings, in order to cause this reverse lever to go forward while the train is being operated? A. Just a very small amount of wear from one-sixteenth in each bearing; with eight or ten bearings, in eight bearings would give you around eight-sixteenths inches, just could be in the excess motion. The excess motion would be in the bearings of the gears; and, in operating this lever with this lost motion would cause the lever to jump forward, where the lost motion and wear was in the bearings.”
There was no testimony whatever by anyone that any of the bearings referred to on this engine were worn. Plaintiff‘s expert was not asked about their condition (evidently he had not examined them) and the fireman and engineer, plaintiff‘s only other witnesses, said they did not find them worn and could find no defective condition
Defendant‘s chief mechanical engineer testified that worn bearings could not cause what occurred because the counter balance spring would overcome that. He said the only thing which could cause the reverse lever to jump forward into the corner would be valve sticking, due to insufficient lubrication, and it was the engineer‘s duty to properly lubricate the engine. He explained this, as follows:
“The main valves are lubricated by an oil line running from the engineer‘s cab back to the cylinder, to the steam chest, which is controlled by the engineer; but, the engineer controls the movement of the drops that go to the valves. The engineer can see that it is feeding. He sets that for a certain number of drops to drop out
of the lubricator for each oil line; and, that is visible to him. There is a little glass on the lubricator showing it; a bull‘s eye. That is the later type of lubricator which all roads have; a glass indicating the oil dropping.”
As to how the engineer might prevent, temporarily, the oil from reaching the valves, he said:
“One cause might be from an engineer working his throttle heavy, or a short cut-off which creates a greater pressure in your steam chest than you have in your oil line—it should be about ten or fifteen per cent difference in over that—and it would probably create a difference of twenty-five or thirty per cent, maybe more; and, that would hold this oil back; and, that might happen until he changes his throttle or reverse lever; and he could clear it up further on and wouldn‘t give him trouble. And another cause, he might have been drifting his engine, which creates a vacuum form of gas through his cylinders, through his valve. That will dry up the lubrication; and, the carbon and soot would absorb the oil. . . .”
“The oil that gets into the valve proper is the oil that goes through this lubricator, going up by drops. The engineer can see that going through there. When it goes out of sight in the glass, the engineer cannot see that oil any more but he knows where it should go. It can‘t go anywhere except to the valves. If it doesn‘t it will stop feeding and back up on you. He will know it pretty quick. . . .”
“Q. If the valves do become dry; and, if at the time the engineer attempts to change the reverse lever running at a rapid rate of speed, would it pull the reverse lever forward? A. Yes, sir. You have got about from five thousand to six or seven thousand pounds of steam probably jerking on that lever; something has got to happen.”
Defendant contends that its demurrer to the evidence at the close of the case should have been sustained because plaintiff failed to prove a violation of the Boiler Inspection Act. It will be noted from plaintiff‘s petition that the only specific charge of violation of the act was, failure to have the engine equipped with an air reverse, which assignment was abandoned and as to which plaintiff offered no instruction. Plaintiff admits that, under the decision of the United States Supreme Court in Baltimore & Ohio Railroad Co. v. Groeger, 266 U. S. 521, 45 S. Ct. 169, 69 L. Ed. 419 (1925), defendant did not violate the act, in not equipping the engine with an air reverse, since no rule of the Interstate Commerce Commission required it and since the same type of reverse lever on this engine was shown to be in general use on various railroads of the country. Outside of this complaint as to the air reverse, the petition only contained the shotgun charge or guess that there might have been some defect which plaintiff did not know of and could not find out about. Plaintiff‘s evidence and instructions were just as indefinite. Plaintiff, after abandoning her original theory that a failure to have an air reverse created a
It is true that a railroad‘s liability under the Federal Boiler Inspection Act, as under the Federal Safety Appliance Act, does not depend upon notice of defects or upon negligence. These acts are to be construed in connection with the Federal Employers’ Liability Act (
The court said as to the sufficiency of this evidence:
“If the boiler was in the condition he described (a condition which violated the Act), it would not be unreasonable to conclude that a breach of duty of defendant caused or contributed to cause the explosion. We think it did not conclusively appear that the failure of deceased to properly operate the engine was the sole cause of the explosion. It follows that the evidence made a case for the jury.”
Therefore, if plaintiff had shown here any defective condition which violated the act, her judgment would have to be affirmed (she could recover) unless it conclusively appeared that it was not the proximate cause of the injury, as, for instance, that the engineer‘s improper operation was the sole cause. However, it will be noted that a defect in the boiler (a leak) which could have caused or contributed to the explosion causing Groeger‘s death was shown to exist in the Groeger case before the accident. That is the difference between the present case and the Groeger case. The evidence in this case fails to show that any defect existed in the bearings of the reverse lever gear (the only defective condition which plaintiff claimed could have caused the accident) either before or after the accident. In commenting upon the Groeger case this court, in Riley v. Wabash Railroad Co., 328 Mo. 910, 44 S. W. (2d) 136 (1931), quoted with approval from the opinion of the Supreme Court of New Hampshire in Watkins v. Boston & Maine Railroad Co., 138 Atl. 315 (1927), as follows:
“‘It is true, as the plaintiff contends, that the “essential and ultimate question—i. e., whether the boiler was in the condition required by the act”—is one of fact. [Baltimore & Ohio Railroad v. Groeger, 266 U. S. 521, 531, 45 S. Ct. 169 (173, 69 L. Ed. 419).] The claim that it is therefore one for the jury to decide is subject to the qualification that the evidence must show a defect which could be found to render the engine unsafe within the meaning of the act.’ (Italics ours.)”
As we have stated, the Boiler Inspection Act makes the requirement that all parts of an engine shall be in proper condition and safe to operate. While this is an absolute duty, a violation of it must be shown to impose liability. A violation of it would be an improper condition which would make it unsafe to operate. To show a vio-
Here, plaintiff‘s evidence only tends to show that the lever jumped because of a temporary stoppage of the flow of oil and does not show an improper condition of any mechanical part. It is, of course, possible under some circumstances, that the happening of an event may be evidence of its cause. An event may be evidenced circumstantially by a cause or by an effect. [McDonald v. Kansas City Gas Co., 332 Mo. 356, 59 S. W. (2d) 37 (1933).] Showing an event occurs, however, does not always necessarily show that a defective condition caused it to happen. The ancient Ford (like the Missouri mule) often kicked without apparent cause, and without mechanical defect, when we cranked it. The question here is not how plaintiff must prove that an improper condition existed. The trouble with her case is no proof of it at all. Plaintiff relies upon coupler cases, where it has been held that a showing that the automatic coupler failed to couple or stay coupled is sufficient to show a violation of the Safety Appliance Act. [Chicago, Rock Island & Pacific Ry. Co. v. Brown, 229 U. S. 317, 57 L. Ed. 1204 (1913); San Antonio Railway v. Wagner, 241 U. S. 476, 60 L. Ed. 1110 (1916); Minneapolis & St. Louis Ry. Co. v. Gotschall, 244 U. S. 66, 37 Sup. Ct. 598, 61 L. Ed. 995 (1917); McAllister v. St. Louis Bridge Terminal Railroad Co., 324 Mo. 1005, 25 S. W. (2d) 791 (1930).] The Safety Appliance Act, however, requires cars to be “equipped with couplers coupling automatically by impact.” [
The question here is: Was there any improper condition of the reverse lever, its bearings, connections or attachments which made it unsafe to operate? It may be conceded that it did operate unsafely but why did it do so? Likewise, a boiler operates unsafely when it blows up, but more than that must be shown to make a case of violation of the act. But a plaintiff cannot recover when his evidence not only shows no defect but also fails to show that the unsafe operation of the appliance was not the result of his own improper act, when the circumstances tend to show that such unsafe operation of the appliance would be a natural and usual result of his improper operation. We do not mean to hold that the evidence must show a broken or worn part to show a defect; such a defect as would cause an improper condition of an appliance and a condition unsafe to
“The appliance was for the use of the fireman, and he controlled and operated it. Any particles of coal or dirt dropped thereon would apparently come from his work in firing. If the latch bound and was tapped back as far as it would go, it would apparently be-
come wedged and less likely to flop than if loose and laid back to where it normally rested. “The law in question requires that appliances used be safe to operate without unnecessary peril to life or limb. The carrier does not insure safety and cannot reasonably guard against every particle of coal or dirt that may come into an appliance by the work of the operator.
“The evidence fails to show any defect in the appliance, or any condition thereof rendering it unsafe to operate, within the terms of the federal law; hence the injury to plaintiff cannot be found to have been proximately caused or contributed to by any violation of that law.”
Other cases holding in various situations that the plaintiff failed to produce sufficient evidence of any defect to show a condition which would violate the Boiler Inspection Act are: Ford v. McAdoo (N. Y.), 131 N. E. 874 (1921), certiorari denied Ford v. Davis, 257 U. S. 641, 42 Sup. Ct. 52, 66 L. Ed. 411 (1921); Tatom v. Seaboard Air Line Ry. (Fla.), 113 So. 671 (1927); Watson v. G. S. & F. Ry. Co. (Ga.), 136 S. E. 921 (1927); Luce v. N. Y. C. & St. L. Railroad Co., 205 N. Y. Supp. 273 (1924), affirmed, 147 N. E. 212 (1925); Auschwitz v. Wabash Ry. Co. (Ill.), 178 N. E. 403 (1931); Mahutga v. M., St. P. & S. S. M. Ry. Co. (Minn.), 234 N. W. 474 (1931); Fredericks v. Erie Railroad Co., 36 Fed. (2d) 716 (2nd Cir. 1929); Ford v. N. Y., N. H. & H. Railroad Co., 54 Fed. (2d) 342 (2nd Cir. 1931); Lynch v. Delaware, L. & W. Railroad Co. (C. C. A.), 58 Fed. (2d) 177. In the latter case, which is the most recent decision of one of the United States Circuit Courts of Appeal and which was a boiler explosion case, the plaintiff‘s theory was that there was a defective condition of an injector which forces water from the tank into the boiler. The court said:
“The only issue necessary for our decision is whether there was enough evidence to submit to the jury. The boiler of the locomotive exploded because the water got too low, and the water fell because the only injector in operation at the time did not feed enough water into it. If this was proved to be due to a defect in the injector, the judgment was right, barring putative errors in the charge, which we pass; otherwise, it was not.” (Our italics.)
The court then reviewed the evidence and found that there was none to show any defect in the injector and that the lack of water could have been due to the engineer‘s failure to open the regulating valve enough. It was argued that although no specific defect was pointed out, it was shown that steam came from the injector. The court concluded:
“To supply this the plaintiff tried to show that the evidence of escaping steam itself showed a defect; but to do so she was obliged to pervert the testimony of the defendant‘s witnesses. Several of these said that the escape of steam would be very unusual; and of
course it would, if it were steam alone. That is what they plainly meant. All the eyewitnesses saw water as well as steam; and obviously Lynch was not concerned by what he found, for he closed the overflow valve and assumed that his boiler was being fed. Nor is there any substance in the distinction attempted to be drawn between ‘steam’ and ‘vapor.’ Harle described it as steam, and saw nothing unusual in it; so did McDonald, one of the men whom Lynch passed. Scott, an expert for the plaintiff, spoke of ‘steam’ as a normal phenomenon when the overflow valve is open. Those of the defendant‘s witnesses who were more guarded in their choice of words preferred to call it ‘vapor,’ though they usually added that it looked like steam. The fancied distinction has no reality, is no more than a straw to save a case which was too speculative. Recent decisions of the Supreme Court [Southern Ry. v. Walters, 284 U. S. 190, 52 Sup. Ct. 58, 76 L. Ed. 239 (1931); Atchison, T. & S. F. Ry. v. Saxon, 284 U. S. 458, 52 Sup. Ct. 229, 76 L. Ed. 397 (1932)], admonish us that we are not in such cases to allow recoveries upon flimsy conjecture beyond the range of solid inference. The evidence is at best no more than evenly balanced, and the plaintiff therefore failed to make out a case. [New York Central R. R. v. Ambrose, 280 U. S. 486, 50 Sup. Ct. 198, 74 L. Ed. 562 (1930); Burnett v. Pennsylvania R. R., 33 Fed. (2d) 579 (6th Cir. 1929).]”
In the present case plaintiff pleaded as the only specific violation of the act a failure to provide an air reverse. At the trial plaintiff abandoned that charge and tried the case wholly upon the theory (not pleaded) that there were worn bearings which created a condition which violated the act. Plaintiff entirely failed to prove that any such condition existed and now asks us to affirm the judgment upon the theory that the jumping of the lever was due to some improper condition thereof which would constitute a violation of the act, although plaintiff does not suggest what such condition could be except that (worn bearings) which plaintiff failed to produce any evidence to prove, and although the only other possible cause of the action which was suggested by plaintiff‘s evidence was the failure of the engineer himself to keep enough oil running to the valves. In this situation certainly all we can say for plaintiff‘s evidence is that it only shows that such an unusual action of the reverse lever might have been caused by worn bearings, if any worn bearings had existed, which was not shown, or might have been caused by a temporary failure to keep up proper lubrication, which it was the engineer‘s duty to attend to, and which failure could only have resulted from an improper operation of the engine. This does not show a violation of the Act. As said by the Supreme Court of the United States, in New York Central Railroad Co. v. Ambrose, 50 Sup. Ct. 198, l. c. 199:
“It follows that the verdict rests only upon speculation and con-
jecture, and cannot be allowed to stand. [Chicago, M. & St. P. Ry. v. Coogan, 271 U. S. 472, 478; 46 S. Ct. 564; 70 L. Ed. 1041 (1926), and cases cited.] “The utmost that can be said is that the accident may have resulted from any one of several causes, for some of which the company was responsible, and for some of which it was not. This is not enough.” [See, also, Lynch v. Delaware, L. & W. Railroad (C. C. A.), 58 Fed. (2d) 177; Pennsylvania Railroad Co. v. Chamberlain (U. S.), 53 Sup. Ct. 391, 77 L. Ed. 503 (1933).]
Under the authorities herein cited, plaintiff had the burden of proof to show that defendant had violated the Boiler Inspection Act, but failed to show any condition which was a violation of this act. Therefore, defendant‘s demurrer to the evidence should have been sustained.
The judgment is reversed. Ferguson, C., concurs; Sturgis, C., dissents.
PER CURIAM:—The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All the judges concur.