Fryer v. St. Louis-San Francisco Railway Co.

the suf- the fact that negligence matter law. view of of challenged, not ficiency user of the track was the evidence to show evidently opinion took the statement of writer of the former “Q” yard through employees crossed over and that the witnesses crossing while meaning the tracks went and over question of user yards. sufficiency the evidence on" challenged seriously present appeal. We have on the track is in both appeals do carefully abstract of record examined the employees of defend- evidence that the record not find either vicinity in that ever went employees of other railroads ant or yard crossing going to and while the tracks upon and over holding places reasons, work. For these returning from their jury,"is opinion a case for the made in the former appeal. controlling on this holding demurrer to the evidence should that defendant’s Our sustained, necessity discussing ques obviates other been

tions raised. All judgment is so concur. reversed. It ordered. should be Hilry N. Estate of Fryer, Administratrix M. Fryer, Lena Railway Company, Corporation, v. St. Francisco Louis-San (2d) 47. Appellant. S. W. One, August 24, 1933. Division appellant. Mann Miller Mann, E. T. Miller i& (£ n respondent. & Gardner for Hamlin Hamlin and Sizer HYDE, Federal upon is an action based violation of the C.' This 23. A., Inspection Act, Chapter Section Boiler U. S. C. Title damages first, counts, was for for petition Plaintiff’s in two husband, damages second, pain for for his conscious of her death suffering. pleaded concerning petition and Plaintiff’s the facts injuries, as follows: husband,

“3. in Plaintiff’s said the line of his duties and in the employment, course of his left the terminal Springfield, defendant’s at Missouri, Muskogee, engineer engine Oklahoma, as on locomotive being in operated by No. then and there and used defendant passenger pulling Springfield its westbound train No. between and Muskogee engine aforesaid; large passenger No. that said 384 was a engine, equipped and with a reverse lever located near engineer’s box, engineer by handling seat in for use and con- trolling thereof; speed power said and and that said lever large bar, height, was a steel five perpendicular four or feet in set in a quadrant position, holding with a with notches thereon for said lever position, necessary so that when it became for said lever quadrant to be moved either forward or backward on said it was engineer necessary for the to release the catch on said lever and the attachments quadrant, by taking thereto from the notches in hold said hands, top thereof; of said his hand at lever with end immediately boiler, said lever was located back of head of the constructed and so that the same could be moved either backward from, boiler, towards head or forward and so had operation moved in the of said locomotive. “é. Plaintiff further states said locomotive equipped valve,

with a Baber which was attached to said reverse lever at the part lower end thereof and which was a the appurtenances and boiler; appliances of said locomotive and iBaker that said valve was directly stem, attached to the valve and connected with said reverse lever, operation so when said locomotive inwas and ivork- ing pulling pressure steam and load an its there was immense direct- against ly lever, and so said while said locomotive was pulling load, operation and its said when released quadrant, by engineer, aforesaid, notches in the as account pressure by force exerted reason thereon of the Baker valve arrangement aforesaid, by reason defective and unsafe suddenly jump condition, great move and with fonvard force and violence. “5. Plaintiff states that said equipped locomotive was not reverse, engines be, air such customarily, are and should equipped; that an air reverse is an or appliance attachment modern customary locomotives, use on which if attached Baker to the lever, air, appliance operates valve controls and said lever quadrant so that when the same is released from the notches aforesaid, the of said lever movement forward or backward is con- trolled and held in check of an air valve, means that the same so easily steadily, will engineer; move and under of control but reverse, equipped when not so with an air the said lever when released upon its quadrant aforesaid, notches will as heretofore stated, jump great move and with and violence while forward force engine operation said is in and pulling (and locomotive load: its great force suddenly jump will with particularly and forward move and and out violence when Baker valve is defective attachment ours.) repair, out). (Italics parentheses of as herein set and date,

“6. early morning wdiile Plaintiff of said states that on the running engine 384, as operating her said husband was and No. said engineer thereof, passenger pulling defendant’s fast westbound train upon No. and certain hill when the same reached and was Yerona, grade Missouri, in it became neces defendant’s track near sary plaintiff’s in of said hus operation the course for said lever; band to move said and order to the same either for move necessary ward or husband plaintiff’s backward then said quadrant to release lever dud said from the notches thereof: plaintiff his upon husband seated seat states while her said engine, cab the head projecting said with his feet towards boiler, running engine was and and while said locomotive thereupon load, lever- pulling upper end of said its he took hold hand, hands, his of the notches with and released same from one quadrant lever; when as said and states that said so to move so, force, by power exerted pressure reason and he did valve, by reason of de lever said Baker and said as aforesaid out., thereby as the same fective and unsafe condition herein set violence, instantly jerked great with force and forward and moved plaintiff’s hand, or said husband same with his while had hold of hands, thereby body upper portion of the so then and plaintiff’s jerked suddenly violently forward said husband was seat, engineer’s in the while was as aforesaid said lever he seated legs caught between said said lever struck and one of and that the (Plaintiff plead that, if not' head.” seems to the boiler reverse, jump whether- equipped an air forward with the lever not.) defective or petition separate charges negligence, The. five four then makes with the equipped have the of which relate to the failure to being follows: above other air reverse attachment describcd'and the “(b) And, in defective- that said Baker valve attachment was defective, were, unsafe, and' thereof insecure and and the valves order; working defects and insuf- not in said specifically forth because set ficiencies thereof cannot more herein plaintiff.” same are unknown to petition moved to have the made more Defendant definite defects were other than the failure point out what claimed certain overruled, After this motion -was defendant have an air reverse. general setting up denial defenses. and affirmative answered both case, plaintiff submitting abandoned all of its When it came to concerning equip assignments the failure to air negligence hypothesized attachment in instructions reverse plaintiff, a if re- authorized verdict for her husband’s death therefrom, following: sulted you gears, valves,

"And if further find that the said reverse lever hearings condition, then in and a attachments defective thereof by reason thereof when the deceased released and under- and that suddenly jumped lever, said reverse the same forward took to move him; leg, injured caught deceased’s and and broke the otherwise and and, you if reason further find and believe from the evidence that inoperative and said on accoimt {and defective locomotive, aforesaid, you if the same was in a defective and find condition, proper inoperative locomotive was not con- the 'said operate) in same dition and the service and use to safe guilty negligence.” being put; was then then the defendant (It thing is if a is in it is in a obvious that a defective condition condition, but how can there be a defective condition without case.) missing link in this defect? That seems to jury’s $10,000, The verdict was for the first count for on $5,000. judgment entered and on the second count for From the thereon, leading appealed. Apparently, defendant events has engineer injury Fryer in the up to the were about as related However, petition. plaintiff’s fire- showed that engine Fryer engine sanding man in with his back with him; hill, running going up train was from turned to forty-five "Oh;” fifty per hour, Fryer cry heard out miles when he right Fryer seat, and that he turned and saw in his on the side away, cab, fireman where he had been before the turned against and with the inside of his left foot the boiler head the reversed holding against against ankle, fire- the boiler head. The pull so, they back until man tried to the lever but could not do twenty per Fryer’s train down about miles hour. slowed the broken, Monett, ran a distance of ankle was but he forty eight injured from miles from where he ivas miles six or engineer. fire- There was relieved another Springfield. Fryer had the lever forward on man further testified that moved acident, hills, trip, that "it didn’t on this four times before-the get go any way.” engineer control the corner or out of thereafter, run, Fryer, move also had occasion to who relieved traveling speed up grade forward to maintain while the reverse lever running Venita, The train was then Oklahoma. south and, accident, knowing Fryer’s about fifty sixty per miles hour engineer help attempt him move the lever a fireman this had the they They were unable to hold it both said that few notches. the.way forward, they it, or as described “it went all that it went They back us.” could not move it until over the corner twenty per fireman train miles hour. The slowed the to about . . . examined this valve Monett "looked over this at anything defective reversed lever and did worn or not find parts.” engineer’s duty about those watch He said it that will dry, lubrication and that the valves become affect “if going reverse control.” corner, lever in will harder to the make it “did engineer Muskogee engine and relief the looked over at any anything find or worn not broken to indicate of part lever gear any part or that the defective of this reverse very operates at a operating with.” He said: is when also “It the high in the speed pressure of steam rate of and because the of you. cylinders get away from will that lever to cause this reverse lubricate by engineer’s properly That can be caused the failure to engineer lubri- the the valves. That has control of will it. do get those engineer cation of oil the valves ... the fails If with the reverse dry valves trouble and become he will have engine.” on any lever engineer plain- testimonjf fireman, and addition to the this of de- testimony inspector discharged

tiff had of a locomotive explained engineer, fendant. maintain He an in that order speed up three grade, two or would move the reverse lever forward increasing notches, cylinders by which would let more into the openings; changing going gear, the valve similar that this was low, automobile; reverse operating in the' second to automobile; that operated emergency lever brake of an was like the with by number of rods lever was connected with the valve bearings engine; and “there connections and on each side of bearings and reverse lever are ten or twelve in this connections and lever.” operate you when move this its attachments that and work testified, concerning movement He then unusual cause by fireman, engineer follows: lever and as reverse observed “Q. lever you will the reverse I will ask to state what cause Well, you go A. jump corner, forward in call it? and Q. bearings. extent main in To what would wear those cause be bearings, bearings worn, twelve will these ten or these have to become train go while the forward order to cause this reverse lever to from one- being A. of wear very Just a small amount operated? eight bearings, bear- bearing; eight ten sixteenth in each with just be inches, ings give you eight-sixteenths would around bearings of in the motion. The excess motion would the excess and, would gears; lost motion operating this forward, motion and wear jump the lever where the cause lost ’’ bearings. in the anyone the bear- testimony by There was no whatever expert engine Plaintiff’s ings were worn. referred to on this them) (evidently had not examined he not asked about their condition witnesses, said engineer, plaintiff’s only other and the fireman and no defective condition they did could find not find worn and them any part. They enough both valves get said that failure to to the oil showed, by engineer cause what occurred. who Defendant a round-trip Muskogee made same Springfield between with the engine injured on (Fryer October October 1926), condition; that the reverse gear good lever and valve was in it; he had no trouble in operating inspected that he then; wrong, anything and that he did find defective or out of not repair bearings. “they these I about He said worn when brought Springfield.” Defendant showed into also engineer Fryer’s inspection report, upon the com- locomotive made pletion Springfield Muskogee of his first run from on October 28th, reported parts that he condition of various require- good; needed, repairs in his he that, statement of made no attachments; gear concerning lever, ment valve reverse report that this was also true made at end of his run Springfield back to 29th. shown the locomotive October It was inspector, inspected 29th Springfield who the at October on during Fryer injured, before which that the start of the run was good nothing wrong in found with condition and that he shown, by parts. employees Springfield these It was other at the engineer Fryer complaint, shops, no that made verbal statement or any engine. report, part his of It addition to written about the Muskogee was shown round foreman his at house engine assistants they completion inspected the on 30th at that October engineer injured; “everything the run which that worked any bearings;” perfect;” play “there no excess that bearings they that “did not find on the connections ordinary worn;” nothing out of the or unusual and that “found engine.” gear this in the condition of the valve or the reverse engineer operated It was further shown who o'n engineer Fryer’s during injury, part first this run after anything wrong November, or or out he “found no trouble that gear gear lever on repair or the valve or reverse with the reverse it,” engine” “never bit of that and that he had a trouble grades. running high speed although at on he advanced it while bearings engineer that testified worn Defendant’s chief mechanical spring counter balance cause what occurred because the could not thing which cause the that. He said would overcome stick- jump into corner would be valve forward reverse lever to duty lubrication, engineer’s it was the ing, due insufficient to engine. explained this, as follows: He properly lubricate the running by an oil line from the lubricated “The main valves are cylinder, chest, which is con- the steam engineer’s back cab engineer movement of engineer; but, controls the by trolled it engineer can see that is go drops to the valves. drop drops out number feeding. certain He sets that for a line; and, of the lubricator each oil that is him. There visible to glass showing it; eye. is a little on the lubricator a bull’s That glass indicating type have; later of lubricator which all roads dropping.” the oil engineer might prevent, temporarily,

As how the oil from reaching valves, he said: might working engineer heavy,

‘‘One cause be from an his throttle greater pressure your a short cut-off creates a steam you your chest than have in oil line—it should be about ten or fifteen per probably cent difference in over that —and it create a would twenty-five thirty per cent, maybe more; and, difference of back; might changes and, happen would this oil until he hold lever; up on his throttle or reverse and he could clear it further give cause, might him trouble. And another wouldn’t drifting gas through engine, been his which creates a vacuum form of through cylinders, lubrication; will dry up his valve. That . and, and soot would absorb the oil. the carbon ‘‘ gets goes through The oil that into the valve is the oil that going going lubricator, up by drops. engineer can see sight goes through glass, engineer there. When out of go. oil more but he knows where it should It cannot see that go except anywhere stop to the valves. If it will can’t doesn’t it feeding up you. pretty quick. He will . . . and back know it and,

“Q. dry; engineer If if the valves do become at the time the change running rapid attempts speed, the reverse lever at a rate of Yes, forward? pull the reverse lever A. sir. You have got pounds to six or seven from five thousand thousand about ’’ lever; something got jerking happen. on that has probably that its demurrer to the Defendant contends evidence at the close plaintiff have been sustained because to case failed of the should Inspection Act. violation of the Boiler It will be noted from prove a only charge specific petition that the violation the plaintiff’s engine equipped with an was, reverse, act air failure instruction, plaintiff abandoned as to offered no wlvichwas that, under the decision of United States Su- plaintiff admits 266 Groeger, & Ohio Railroad Co. v. U. preme in Baltimore Court 419, L. Ed. did defendant not violate the engine act, equipping reverse, with air since rule in not no required Commission Interstate Commerce and since of the general in type lever on this was shown to be of reverse same country. complaint of the Outside of this on various railroads use reverse, shotgun charge petition contained the only air as to the might guess some defect which have been that there find about. and could not out Plaintiff’s evidence know of did not abandoning just Plaintiff, as indefinite. after instructions theory a failure to have an air reverse original that a created her- act, at trial to a of the undertook violation condition which bearings which a constituted violation were worn there show that shown, attempt, also, as hereinafter failed because This act. bearings. position is Plaintiff’s now of worn no evidence there was existed, any particular defect necessary show that was not that it function, properly failed to part that some but forward violently lever went showing reverse that and that the evidence that it manner was therefore sufficient in an unusual question we must the act and look to To determine defective. construing plaintiff’s posi- it. Federal Courts the decisions of If correct, explosion necessary that it luouZdbe in a boiler case all is tion liability act, prove, under the would be plaintiff to to show for Therefore, explosion exploded. a boiler case boiler that the Federal not construe the prove But decisions do so itself. Inspection Act. Boiler liability that a

It is true railroad’s under the Federal Act, under Inspection the Federal Safety Appliance Boiler depend upon negligence. Act, notice of defects or doe& in are to be construed connection with These acts the Federal Liability (U. A., 51-55). Employers’ Act S. C. Title Secs. Vio requirements negligence is the same as per of their lation se and injuries liable to its employer employee makes for absolute^ resulting Supreme United States recently therefrom. The Court has Groeger Inspection Act in ease, Boiler supra, construed the “provides it shall be saying unlawful ‘for common propelled by ... to use locomotive carrier . . . . boiler and appurtenances . unless the power . operate and safe to condition service are thereof may put, employed is the same same to which moving traffic unnecessary of such carrier without active service ’ imposes upon . . higher . It limb. the carrier a peril to life or duty requirement theretofore existed. degree of than the common-law rule which holds is substituted the em- statute ordinary provide employees care to reasonably safe ployer to reasonably appliances which, machinery safe place in duty . . . Defendant’s which, work. have the boiler in it could be operate so used without unneces- safe condition and continuing. was absolute employees No sary to its notice peril constructive, of defendant, actual or the defects or unsafe to the necessary plaintiff’s case. the boiler was Defendant thq duty contributed to cause death. . . . if its breach liable absolutely furnish before, what was bound Defendant under duty law, ordinary to exercise provide.” it was care to common says further that the essential Groeger case ques- ultimate (and is whether the boiler jury determine ap- the for tion required the act. condition It certainly in the was purtenances)

751 not hold that the Groeger’s engine does that the boiler ex- fact of ploded proof was all the required that was to show that boiler was the required by the condition the act. In case, was that there evidence that-a brakeman Groeger’s engine, “went into the cab of there, that, while he escap- observed that water and steam ing the box; from boiler into the fire sizzling that he heard the fire; that, the water the opened when door, he the fire box gushed put; dead; the fire gauge was the steam showed pounds pressure, 160 being that water put into the boiler injectors.” the two sufficiency

The court said as. to the of this evidence: “If the boiler in the (a condition described condition which Act), violated the it would not be unreasonable to conclude that duty breach of of defendant caused or ex- contributed to cause the plosion. conclusively We think it appear did not that the failure properly deceased to operate the was the the sole cause of explosion. It follows jury.” that the evidence made a for case the Therefore, plaintiff had shown here condition !/ defective act, judgment which her violated have (she .would to be affirmed d recover) could unless it conclusively appeare that it twas not the proximate as, injury, instance, engineer’s came for improper operation cause. However, sole it will be noted (a leak) a defect in the boiler could caused or con .explosion causing Groeger’s tributed to death was shown Groeger exist in the case before the is accident. That difference Groeger present between the case and the case. The evidence in this case bearings fails show that defect existed in the re gear (the only verse lever defective condition which claimed accident) have caused either before or after the accident. commenting upon Groeger court, this v. in Riley case Wabash Co., 910, (2d) 136, 328 Mo. 44 S. W. quoted Railroad approval opinion Supreme Hampshire Court of New & Co., Watkins v. Boston Railroad 138 Atl. Maine as follows: “ true, plaintiff contends, ‘It is that the ul “essential and e., question timate whether the boiler was in the condition re —i. quired by act” —is one fact. & Ohio Railroad [Baltimore (173, 45 S. L. Groeger, U. S. 419).] Ed. jury subject claim that it is therefore one decide is qualification must show that the evidence which could a-defect meaning to render the within the found unsafe be act.’ ours.)” (Italics stated, Inspection require- As Boiler Act makes we-have parts all of an shall be ment that condition and safe operate. duty, While absolute a violation of must liability. impose A improper shown violation of it would be an operate. a vio- would make unsafe to To show 752 duty, must it not shown that

lation of be some defect existed engine improper which make condition of would or could the the Showing operate? something happened to which unsafe by improper operation (failure been properly could have caused to lubricate), plaintiff’s (it here eA'idenee fact shows leaves oato Avay it), to account for no other Avithout evidence at all that a happened, mechanical defect which have existed caused what surely say. not sufficient. That is Avhat the authorities “The injury mere fact an has resulted from some condition aof appurtenance part locomotive or a or thereof does not of itself engine parts show that are not in condition and operate.” Roberts, safe to (2 Federal Liabilities Carriers [2 Ed.) 1250, sec. In every case, plaintiff cited Avhieh we 654.] holding able to been find the evidence sufficient to show vio Act, has Inspection lation of Boiler there been shown some exist ing appurtenances defect the locomotive or its Avhiehcould have injurjr. an caused the Avhiehresulted in In Groeger accident said, case, boiler,, there Avasa leak in the as we which could have explosion. Chicago, cause of In Kilburn v. been the Milwaukee Ry. Co., 75, & 289 Mo. 232 1017, St. Paul S. W. there aAvas broken cylinder piston Avhieh head caused excessiAreamount of steam place escape working into the where Avas and this could injury. Chicago, In v. have caused Ry. Co., Kidd Rock Island & Pac. 1, 1079, 274 S. W. 310 Mo. certiorari 269 582, denied U. S. 119, 70 Ed. 424, 46 L. main drifting throttle and engine leaking AA'ereboth throttle of steam badly and could not necessary became cylinder be shut off so that it to leave the cocks open, permitting an of steam escape excessive amount and also grates thejr were out of order so that could not shaken, necessary made turn on the blower to create draught fire, which made hissing sufficient for the a loud noise. It this steam and was also shown noise made impossible employee approaching to see or hear an defendant’s train stepped adjoining when he he was killed track to walk around Co., In Drew St. Louis-San Ry. v. Francisco 220 steam. App. Mo. cylinder 468, 720, 293 W. cocks of broken, ground allowing escape and strike the with sufficient force to to be and cinders blown into the cab, cause dirt injuring eye. In Watkins Boston & Maine plaintiff’s (N. Railroad Co. H.), 315, the gangway apron 138 there was Atl. betiveen was loose engine and tender and had too play much due to granted question A new use. trial Avas wear and submit the act, sufficient defect was a to violate the Aidietherthis but it was held Groeger following case, question improper submit chains, new equipment to furnish whether failure hold act. secure, Gerow v. apron Seaboard Air Ry. Line violated (N. C.), 345, 128 S. E. certiorari denied U. S. 46 Sup. Ct. L. Ed. there iras no strainer over the intake of the got tender so that trash into the tank and thence tank into the leading injectors. hose this, to the It ivas shown that as a result of clogged strainers in the tank hose had been with trash so as to stop the flow through of water from the tank to the boiler in jectors explosion. and that this caused however, Lynch See, Delaware, (C. v. L. & W. A.), 177, Railroad 58 (2d) Co. C. Fed. where the evidence failed any to show such condition con and the tention a injectors was that defective condition of the could be in explosion ferred from the boiler which could have been caused by injectors. defective The court such held evidence insufficient to jury make a ease. In v. Minneapolis Thornton & St. Louis Railroad (Iowa), 71,W. Co. 175 N. the valve of the blow off cock would not discharge pipe securely close and the was not fastened so that discharge pressure pipe of steam drove the position out of its against plaintiff causing injury. threw it by It was shown even defendant’s found the clamp blow off cock and .witnesses Fry Chicago, loose. In v. Rock &Pacific (Minn.), Island Railroad Co. 629, N. 723, 195 W. certiorari 263 U. 44 denied S. Sup. 231, Ct. 68 525, pin L. Ed. the handle of the lifter aof switch inwas position endanger such a when not in attempting use men alight by catching clothing. the footboard of the their also, [See, Ry. Donaldson, v. Great Northern Co. 246 U. 38 121, S. (defective Sup. 616 230, 62 L. Ed. Ct. button heads on crown sheet burning engine) ; 275 Smith, (auto bolts for oil Hines v. Fed. 766 ringer bell) ; ring matic bell was out order and would not (Tex.), (failure 254 151 Schaff v. Perdue S. W. clean boiler and bolts; v. (Tex.), Lancaster 231 148 cracked crown sheet Allen S. W. (weak and insecure sheet crown bolts stays).]

Here, plaintiff’s evidence tends to show that jumped the lever temporary stoppage a because of of the flow of oil and does not show part. is, condition of mechanical It improper course, an pos circumstances, happening that the may under some of an sible event An may cause. event be be evidenced circum by stantially an effect. City a cause or v. Kansas [McDonald Co., (2d) Showing 332 59 S. W. 356, Gas Mo. occurs, event 37.] always necessarily'show however, does not that a defective condition (like happen. mule) The ancient Ford caused it to the Missouri apparent cause, without and without defect, ofteh-kicked mechanical question it. The here is not when we cranked how must condition existed. that an The trouble prove with her improper proof coupler Plaintiff cases, of it at all. relies case is no showing a coupler been held that the automatic where' it has stay coupled is sufficient to show couple a violation failed to [Chicago, Safety Appliance Act. Rock Island & Ry. Pacific of'the 754 Railway Brown, 1204; v. 229 317,

Co. U. S. 57 L. Ed. San Antonio Louis Wagner, 476, 1110; v. Ry. 241 U. S. 60 L. & St. Minneapolis Ed. 995; 598, Gotschall, 66, Co. U. 61 L. Ed. Bridge 324 Mo. Co., McAllister v. St. Louis Terminal Railroad Safety Act, however, requires 25 S. (2d) Appliance W. 791.] automatically by im “equipped couplers coupling cars to be A., compliance pact.” question S. C. Title sec. [U. 2.] they do not simple; couplers couple with that act is either couple. coupler couple Of if car fails to so that course, required the act coupled, couple it would remain does not showing opened, part, a let the cars and therefore that it so as to thing act. be true would show the violation of the The same requiring grab “provided with under Section that cars be secure grab of each ear.” If a irons or handholds the ends sides Therefore, man it is if it is shown iron does not hold a not secure. it, grab gave way attempted with man use iron who would be sufficient to show that it was not secure. What could show conclusively? Likewise, the violation section can more definitely Drawbars must be of stand ascertained measurement. height Louis, & Act. Iron Mountain or violate the ard [St. Ry. 52 L. Taylor, 210 U. Southern Co. brakes,” See, also, 11, requiring “efficient hand Ed. Section 1061.] [Henry v. C. brakes. C. C. which means maintain secure hand to Ry. (2d) 340, Co., & 61 S. W. and cases therein- St. L. Mo. case, Therefore, breaks, Henry if brake chain a cited.] the brake has been maintained act is violated. not secure and the nothing broke, nothing loose, present case was even worn or pointing any part mechanical defect in any there is no evidence any All way provisions defective. these relate show that it was>.m easily ascertained conditions specific, to more more definite and more Inspection than in the Boiler Act. These situations are that stated although liability here, therefore different than the one the absolute exactly for violation of each is the same. question any is: Was improper here there condition of lever, bearings,

the reverse connections or attachments which may operate? operate made It be conceded that it did it unsafe Likewise, why operates a unsafely unsafely did it so? boiler but do up, it but more than that must be shown a case when blows to make plaintiff act. of violation of the But a cannot recover when evi his only shows no defect but also dence not fails to show that the unsafe operation appliance was not the result improper own act, operation the circumstances tend show that such when unsafe appliance a and usual improper would be natural result of his operation. not mean to hold that the evidence must We do show a defect; part a such defect as broken or worn to show a would cause appliance an and a condition improper unsafe to by showing act, proven operate, wliicli violate the could be parts adjusted. properly were loose or No that or some of its not any one testified there was ever kind 'of defect found in that any parts perfect that of its mechanical testimony something condition. Is that not shown exist could jump, any thing have a did caused the lever to evidence that such Suppose plaintiff’s expert cause it? had testified that if a locomotive only'four side, had five drive wheels on one side and on the other that jump. If any would cause the lever to have did not to show that the had more wheels on one side than on the say other, testimony, could we that his that five wheels one side any unequal could cause it was evidence that there was such an number of wheels and that such a condition did cause it? The tes- timony expert questionable, absolutely ignored since it spring, counterbalance defendant’s witnesses claimed would bearings, conceding jury overcome effect of wear in but that the explanation believe his of what could result from such con- lacking any dition, there is still evidence that it existed. On hand, plaintiff’s own other evidence shows that the unusual action sticking of the reverse lever could have been caused valve due temporary lack sufficient lubrication. Defendant’s evidence nothing have was that else could caused it and that such lack of lubri- improper could here operation. cation resulted There oiling sj^stem claim the automatic respect is no was in de- engineer’s duty The evidence showed that it was the fective. parts bearings gear connecting lubricate the other can; and the valve from the reverse lever outside with his oil through passed pipes oil which the oil to lubricate the itself valve eyes where he could see whether or not it properly was before his regulate through working; it; he could the flow of oil duty it, part operated properly of his to watch see that it was it was properly. This keep operating situation is somewhat similar and (Minn.), Byram 222 519, in v. N. W. O’Dea where the latch shaking turning appliance grates and upon the of the loco- it) (probably by coal became bound and dirt in and motive would go position. shaking While the back into its normal fireman was not grates flopped bar the latch against with a handle fell over stub, upon which grate he had fitted the handle bar to move , suddenly grates. stopped bar, This movement of his handle injured brought him. jerked and He him forward suit under the Act, court Inspection latch, but the held that no defect in Boiler act, shown, saying: was violation of the therefore no and fireman, the use of the and appliance was for “The controlled Any particles of coal operated dropped it. or dirt thereon firing. work in If come from his the latch apparently bound go, back as far as would it would tapped apparently be- was 756 if laid likely than loose and back wedged flop less

come normally rested. where it requires question appliances used be safe in “The law does limb. The carrier unnecessary peril life or without operate every guard against particle safety reasonably and cannot insure may appliance the work of come into an dirt that of coal or operator. any any appliance, defect in the show “The fails to within the terms of rendering operate, it unsafe to thereof condition found to injury plaintiff cannot be law; hence the federal violation proximately any caused or contributed to have been that law.” plaintiff failed holding in situations that the various Other cases defect to show condition produce sufficient evidence (N. Inspection are: Ford v. McAdoo Boiler Act would violate Davis, U. S. Ford v. 257 Y.), 131 N. E. certiorari denied Ry. 411; v. Air Tatom Seaboard Line 52, 66 L. Ed. 42 E. Ry. (Ga.), F. 671; S. & Co. Watson v. G. (Fla.), 113 So. 205 Y. Co., Supp. N. & St. L. Railroad N. Y. C. 921; v. Luce (Ill.), 212; Ry. v. Wabash Co. N. E. Auschwitz affirmed, 147 Ry. (Minn.), 234 403; Mahutga P. & S. S. M. Co. M., v. St. N. E. (2d) 716; Co., 36 Fed. Ford 474; v. Erie Railroad N. W. Fredericks (2d) 342; Lynch v. Y., Co., H. Fed. N. N. H. & Railroad (C. ), (2d) A. 177. C. 58 Fed. Delaware, L. & W. Railroad Co. United decision of one of the case, which is the most recent the latter explosion Appeal and which was a boiler Circuit Courts of States theory that there was a defective case, plaintiff’s injector the boiler. which forces water from the tank into of an court said: necessary

“The issue for our decision whether there juiy. enough The boiler the locomotive evidence to submit to the got because exploded because the water too the water fell IoW‘, only injector enough operation at time did not feed water proved injecton, this was to be due to a into it. If defect judgment right, barring putative charge, errors italics.) (Our otherwise, pass; it was not.” we reviewed the evidence and found that there was The court then injector and that the lack water show defect none to regulating engineer’s open the have been due to the failure to argued although enough. specific no defect was It was valve injector. pointed out, shown that steam came it.was concluded: court supply this the tried to show that the evidence

“To defect; obliged itself escaping showed a but so she was to do testimony the defendant’s Several of the of witnesses. pervert to very unusual; of escape of steam would be and these said that the

757 -would, plainly it if it alone. That is what course steam; eyewitnesses All meant. well saw water as .ob Lynch viously found, by for he closed was not concerned what being -Nor overflow valve fed. and assumed that boiler was any is be attempted there substance in tire distinction drawn steam, saw ‘vapor.’ tween ‘steam’ and liarle described it Lynch nothing it; McDonald, unusual in did one the men whom so passed. Scott, expert plaintiff, spoke ‘steam’ as a an for phenomenon open. is Those of normal when the overflow valve guarded more in their choice defendant’s witnesses who were preferred though they usually that ‘vapor,’ words call it added no reality, it like has is looked steam. The distinction no fancied speculative. Recent a which more than straw to save a case was too (Southern Ry. 284 U. Supreme Walters, v. decisions Court 58, 239; Ry. 190, Atchison, L. & S. F. Sup. S. 52 76 Ct. Ed. T. 397), Sup. 229, v. 284 L. us Saxon, 458, 52 76 Ed. admonish U. S. Ct. flimsy con that are in such eases allow recoveries we at range jecture beyond evidence of solid inference. The failed balanced, plaintiff evenly best and the therefore no more than Ambrose, York R. R. 280 U. out v. to make a case. Central [New R., Pennsylvania R. 562; 74 L. Ed. Burnett 50 Ct. (2d) (C. A. 6).]” Fed. C. only specific violation present plaintiff pleaded case as the plaintiff At a air reverse. the trial provide of the act failure to theory charge wholly upon the case abandoned that and tried (not pleaded) bearings worn which created condition that there were any entirely prove which act. Plaintiff failed violated the judgment upon such now us affirm the condition existed and asks theory jumping improper some lever was due to act, al which a violation of condition thereof would constitute suggest except though such could be plaintiff does not what (worn bearings) evidence produce which failed to although only possible prove, other cause of the action suggested by plaintiff’s was the failure running enough In this engineer keep to the oil himself to valves., evidence is certainly say plaintiff’s all can we situation reverse an unusual action of the that such shows bearings had might bearings, if worn worn have been caused might by a tem existed, shown, have been caused which was not keep lubrication, up proper en porary failure to to, only gineer’s duty attend and which failure resulted engine. not show This does operation of the improper from an United Supreme Court of Act. said As violation Ambrose, Sup. v. Co. States, Central Railroad in New York c. 199: l. _ con- speculation only upon the verdict rests “It follows that Ry. P. & St. M. [Chicago, stand. allowed to jecture, cannot be 1041, and 564; 70 L. Ed. 472, 478; Coogan, S. 46 S. Ct. 271 U. cases cited.] may have re- accident can be said is “The utmost causes, the com- for some several one of sulted This is not. which it was responsible, and for some of pany (C. Delaware, L. & W. Railroad also, Lynch v. enough.” [See, v. Chamberlain (2d) 177; Pennsylvania Railroad Co. A.), 58 C. Fed. L. Ed. (U. S.), 503.] cited, plaintiff had the burden herein authorities Under the Inspection the Boiler proof had violated that defendant to show was a violation of this Act, but failed to show evidence should have Therefore, demurrer to the defendant’s act. sustained. been concurs; G., G., Sturgis, Ferguson, reversed. judgment dissents. foregoing opinion PER CURIAM: The C., is adopted IIyde, judges All opinion of court. concur. Henry Thompson, Appellant, v. L. McCune,

Cora Executor. (2d) 63 S. W. 41. One, August

Division 1933.

Case Details

Case Name: Fryer v. St. Louis-San Francisco Railway Co.

Court Name: Supreme Court of Missouri

Date Published: Aug 24, 1933

Citation: 63 S.W.2d 47

Court Abbreviation: Mo.