109 Ill. App. 468 | Ill. App. Ct. | 1903
delivered the opinion of the court.
The evidence tends to show, without conflict, that the deceased was a sober, careful and competent engineer. There is nothing to indicate that prior to and at the time of the explosion, he was negligent or improperly discharging his duties. There is no question of contributory negligence. Two issues of fact remain to be determined. These are. was the engine furnished by appellant “ reasonably safe ” ? If it was not, had appellant exercised reasonable care to furnish a reasonably safe engine ?
At 6:18 a. m., May 17th, the engine was turned over to the deceased by the hostler in charge at Centralia. Its boiler and tank were full of water. The safety valve was set to allow steam to pop off at 160 pounds pressure, and was in good working order. The train consisted of one express and baggage car, a smoking car and a ladies’ car. "When nearing DuBois a little after seven o’clock, a long blast of the whistle was given for the station, followed by a short blast, steam was shut off, and while slowing down for the station, the boiler exploded with great violence, injuring the deceased and his fireman so that they both soon died.
Nothing appearing to the contrary, the inference is that the boiler exploded because some part of it was insufficient to stand the strain of ordinary pressure, either through long use, improper material in its construction or repair, or from being casually out of repair in a part or parts which was not discovered, or at least not repaired, when inspected May 12th, five days before the explosion.
Appellant contends that no presumption of negligence arises from the fact of the explosion of the boiler.
The cases cited by appellant must be considered in connection with the facts disclosed in them. One of these cases is I. C. R. R. Co. v. Houck, 72 Ill. 285. This case cites I. C. R. R. Co. v. Phillips, 49 Ill. 234, in which this precise question arising upon a refused instruction is discussed at length. It is there said:
“ The manufacturer has tests which are recognized by the scientific world as well as the practical manufacturers, by which to detect latent defects, if they exist, thus securing safety and durability. Every day’s experience teaches that where the proper quality of iron has been selected under the usual tests, with reasonable care, by skillful and experienced persons, they are safe in their use for practical purpose. Knowing this, when an explosion has occurred, it is natural to conclude that there has been negligence in selecting, testing or putting the materials together when constructed into a boiler, or that it has been negligently used by subjecting it to too high a degree of pressure by steam. It would therefore be improper to say that an explosion is not prima, fade evidence of negligence.”
The case of I. C. R. R. Co. v. Phillips was again before the Supreme Court and is reported in the 55th Ill. 194, and the presumption of negligence was again discussed. It is there said :
“ There is no great hardship imposed upon appellants, in presuming negligence upon proof of the explosion. It may be easily rebutted if untrue. Such a presumption, however, is prompted by motives of public policy, and is necessary for the promotion of public safety. We know explosions happen—that they are the exception, not the rule. We know that boilers manufactured of good material, and carefully managed by skillful and prudent men, carefully tested, thoroughly repaired when defective, and closely observed to discover indications of weakness, rarely explode. There are mysterious explosions assignable to no known cause. This is only the exclusion of what is comprehended in the general rule and should not forbid the inference deducible therefrom. No sane man can doubt, that explosions generally result from defective iron, corrosion or deterioration of the boiler or its mismanagement. Such facts proved would constitute negligence.”
In commenting upon the Phillips case, reported in the 49th Ill., supra, it is said by the court in I. C. R. R. Co. v. Houck, supra:
“When the suit is brought by the engine driver, who had charge of the engine, or his representatives, against the corporation owning the engine, there is no presumption in his favor that the explosion was caused by defects in the boiler rather than from its negligent use, and the burden is upon the plaintiff to show that the engine driver was not himself guilty of negligence which caused the explosion. The burden is upon him to prove the negligence which he charges, and this is not sufficiently done by merely proving an explosion which may as well have resulted from the negligence of the engine driver as from that of the defendant.”
In T., W. & W. Ry. Co. v. Moore, 77 Ill. 217, it is said:
“ It will be observed that in the Phillips case, the person injured was a bystander who was not in the employ of the company and in no manner connected with it. Under such circumstances, it was very proper to hold that the explosion made out a prima facie case of negligence, for the reason that the company would be held liable if the explosion occurred on account of defects of the engine or through the negligence of the engine driver.”
This case is cited in The John Morris Co. v. Burgess, 44 Ill. App. 39, which holds that when a bystander is injured, the explosion of a boiler is prima faeie evidence of negligence.
From these cases it is seen that the reason for the rule holding that an explosion is not prima facie evidence of negligence when the representatives of the engineer sue, is, that his negligence may have been the cause of the explosion, and not a defective boiler. But if the evidence shows that the engine driver was not at fault, then there is no reason for the rule, and the reason failing, the rule does not apply. In other words, the decisions warrant the inference that if a boiler explodes, it is because it was improperly used, or because it was defective. If the evidence shows that it was not improperly used, then the conclusion follows that it exploded because it was defective.
We think that the rule may be thus stated : An explosion of a locomotive boiler, whereby passengers or others to whom the company owes the duty of care, such others not being charged with the management of the engine, is prima facie evidence of negligence on the part of the railroad company. But as to the driver of the engine, it is not such evidence. But if it is proved that the explosion was not due to want of care, skill, fault or negligence on his part, the explosion is prima facie evidence that the boiler was defective and unsafe. This is not holding that it is also prima facie evidence that the party furnishing the boiler was negligent, for the reason, that to make the master liable for injury to the servant from defective machinery, it must also appear that the master had knowledge, or should have known, that it was defective and unsafe.
Such notice or knowledge is not presumed from the mere fact that the machinery is out of repair or is in an unsafe condition.
In the case at bar, there is evidence proper for the consideration of the jury, bearing both upon the condition of the boiler and the care that was used in ascertaining its condition.
The exact cause of a boiler explosion is in many instances not easy to determine. Nor is it necessary, under the pleadings as they are in this case, that an exact single cause, if it was a single cause, should be definitely proved.
The declaration does not specify the particular part of the boiler that was defective, unsafe, or out of repair. Its allegations are general. It alleges that appellant negligently provided an engine for the deceased which was in an unsafe condition and repair, and a boiler composed of materials that were deficient and not capable of sustaining the strain incident to the operation of said engine by steam power, and by means thereof liable to explode, etc. —and the said engine by reason of its unsafe condition and repair, the want of sufficient strength in the materials of which it was composed, and by means thereof—exploded with great force and violence. To this the general issue was pleaded.
It was competent, under the pleadings, for the appellee to show the materials of the boiler, its state of repair, and that its imperfect or defective condition was the cause of the explosion; whether this defective condition was in consequence of a collision; a part of the boiler being worn thin by long use; by broken or weakened stay bolts; or by all or any of these causes combined. No one would question the competency of evidence to prove that the engine and boiler were new, and of approved manufacture,- as tending to show both their reasonably safe condition at the time of the explosion, and also that appellant had used reasonable care in providing safe machinery for the use of its servants. For a similar reason it was competent to prove that in 1896 the engine had been in a head-end collision; that in it “ the machinery was all torn to pieces and the boiler hurt in places;” that the engine was ten years old and had run 500,000 .miles; that some of the stay bolts, examined after the explosion, indicated old breaks; that all the flues were taken out in 1899, and 186 new ones replaced that number of old ones; that forty-seven cracked or broken stay bolts were taken out five days before the accident; that the engine had been frequently repaired; that the boiler often leaked; that five days before the explosion, a patch seven by nine inches had been placed on the left side of the fire box, and that at a point where great strain came, a thin piece of the boiler was found to have been blown out. All of this was competent evidence, having greater or less probative force, when taken in connection with the evidence of repairs and inspection, for the jury to weigh both as bearing upon the condition of the boiler and notice to appellant of its condition.
Considering this evidence together with the undisputed facts—that the engine driver was competent and careful, the safety valve in good order and indicating no undue steam pressure, the train a light one, the boiler and tank filled with water at Centralia, twenty-five miles from Du Bois station, and that the explosion came an hour after the train started and between whistles for the station, with steam shut off and while slowing down for the station, warrants the inference, if the engineer was not at fault, that the boiler was defective. We can not say that the jury was unwarranted in finding that the boiler was defective and unsafe, and that reasonable care on the part of appellant would have discovered its defective condition.
Other points made by the appellant will be briefly noticed.
It is urged that a blacksmith and a farmer who testified that they examined some of the broken stay bolts after the explosion, and testified that the breaks indicated old breaks, were not competent witnesses, not being experts.
The appearance of a broken bolt as shown by a recent or a remote break, is a matter of common observation and does not come within the class that limits an expression of opinion to experts. C. & A. R. R. Co. v. Truitt, 68 Ill. App. 76.
There was no error in admitting evidence of deceased’s reputation as a sober, careful, and competent engineer. There was no one in the cab with him at the time of the explosion except his fireman, who was'also killed. Direct proof of ordinary care could not then be made.
In such case, evidence of general reputation for care, etc., is competent. Many cases so holding might be cited. C. B. & Q. R. R. Co. v. Gunderson, 174 Ill. 495; Dallemand v. Saalfeldt, 175 Ill. 310.
It was not error to exclude evidence as to the custom of other railroad companies in inspecting engines. What inspection would be reasonably sufficient depends upon a variety of circumstances. An old engine, or one frequently out of repair, or that has seen long and severe service, would naturally require more careful inspection than one but lately put in use, and in general good order. The question in each case is, what is reasonable care and inspection in this case.
It is not in the nature of things that conditions can be always similar, and there can be no custom, in its legal sense, unless conditions are similar.
The fact that the life of the deceased was insured and that his widow received the insurance, is not a factor to be considered in establishing the amount of damages to be allowed. It is a novel proposition, unsupported by law or justice, that a widow’s pecuniary loss on- account of the death of her husband through the negligence of his employer, is to be gauged by the amount of insurance which he has been considerate enough to provide. The statute provides for the recovery of whatever pecuniary loss the widow and children sustain. It is for their benefit and the husband can not contract away this right to recover. Maney v. C., B. & Q. R. R. Co., 49 Ill. App. 115.
Appellant’s criticism of appellee’s first instruction is apparently based on the instruction as abstracted. The criticism is that the instruction is “ defective in declaring appellee’s right of recovery in consequence of the explosion of the boiler, irrespective as to whether or not such defective condition was charged to the negligence of appellant, as charged in the declaration.”
The abstract omits that portion of the instruction which required the jury to find from the evidence that “ the defendant carelessly and negligently furnished the deceased with an engine, the boiler of which was out of repair and in a defective condition, as is averred in plaintiff’s declaration.”
The instruction when read in the record is not open to the criticism as read in the abstract. Appellee’s second instruction is as to the measure of damages. The first sentence is, “ If, under the evidence in this case and the instructions of the court you find the defendant guilty,” etc. The criticism is, “ it improperly authorizes a finding upon and from instructions and does not correctly announce the rule as to measure of damages, being too broad, in that it may have been understood as authorizing allowance for consolation.”
The instruction was not liable to be understood in the manner suggested by the criticism. Nor do we think that the instruction is open to the latter part of appellant’s objection. If it were, it is not a material error.
It is not assigned for error that the damages are excessive, nor are the damages excessive under the evidence that the deceased was a sober, competent engineer, thirty-seven years of age and earning from $125 to $140 a month.
We have examined the modifications to appellant’s third, fifth, seventh, eighth and tenth instructions. They are not material modifications and introduce no element of error in the instructions as modified.
The substance of the twelfth refused instruction, so far as it states the law correctly, was fully given in other instructions. If it is to be construed as requiring proof of what particular part or piece of the boiler was so defective that it caused the explosion, it does not state the law correctly under the pleadings in this case. If the jury was warranted in believing from the evidence that the boiler was in such general poor and out of repair condition, and any portion of it too thin, or that the stay bolts were cracked and broken, and that this, or these conditions, caused the explosion, then the allegations of the declaration, as to a defective boiler, were sufficiently proved.
It is urged, as is now generally done in all contested cases, that the court should have instructed the jury to find for the defendant. If the court had so instructed it would have been reversible error. There was evidence tending to show that the boiler was defective and out of repair, and from its history, its long service, frequent repairs, and the condition of some of its parts after the explosion, as testified to by witnesses, the jury had grounds for belief that such an inspection as such an old. boiler should reasonably have had, would have disclosed its dangerous condition.
Finding no material error in the record, the judgment of the Circuit Court is affirmed.
