210 F. 849 | 5th Cir. | 1914
This cause comes to this court upon a writ of error to the District Court of Mississippi at Jackson, to review a judgment for the defendant, rendered on a directed verdict in an action to recover damages for personal injuries, consisting in the loss of an eye, which the plaintiff’s intestate and husband received, while engaged in the employment of the defendant as a railroad locomotive engineer, by the explosion of an indicator tube of the lubricator of the engine he was in charge of.-. The action was brought under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p- 1322]). The original plaintiff was the injured employé; he died before judgment, and the cause was revived in the" name of his wife as administratrix.
Two errors are assigned:
(2) The second assignment is based upon the action of the court below in sustaining the defendant’s' motion for a peremptory instruction and in giving and not refusing the same. The original plaintiff, J. H. Woodruff, was, at the time of his injury, and for many years had been, a.locomotive engineer in the employment of the defendant. When injured he was running between Woodville, Miss., and Slaughter, La., in charge of a freight engine and engaged in interstate commerce. His engine was equipped with what is known as a Nathah No. 8 lubricator, which had four glass tubes, three called feed tubes, and one an indicator tube. The original tubes were furnished to the railroad company by the manufacturer with and as a part of the lubricator. They were tested by the manufacturer under a test which indicated that their tensile strength, as was true of all the parts of the lubricator, was such that they were able to withstand a pressure of 300 pounds to the square inch. When the lubricators came from the factory, the glass tubes were protected by a tin shield with perfora
The plaintiff in the court below, as is the case in the state court, relied principally, if not entirely, upon the substituted wire coil for a recovery, and the court below as is true of the Supreme Court of Mississippi, probably considered only this defect in sustaining the defendant’s motion for a peremptory instruction. It is now pressed upon' us, both in oral argument and in brief by counsel for plaintiff in error, that the evidence shows a negligent defect upon the idea that the indicator tube, which exploded, was not of sufficient tensile strength to withstand the steam pressure, which the engine was intended by defendant to carry, and that, as to this defect, there was no assumption of risk by plaintiff’s intestate, since it was not an obvious one, and th<e record fails to show any knowledge on plaintiff’s intestate’s part that the tube was of insufficient strength.
The evidence shows that the engine was constructed to carry a steam pressure of 150 pounds to the square inch, and that such pressure was frequently maintained; that at the time of the explosion the steam pressure was only 145 pounds. The automatic safety valve did not permit a greater stéám' pressure than 150 pounds. The evidence showed that a short time before the accident the indicator tube on the lubricator had