Anderson v. Baltimore & OR Co.

• Decision Date: 12 April 1937
• Docket Number: No. 328.,328.
• Citation: 89 F.2d 629
• Parties: ANDERSON v. BALTIMORE & O. R. CO.
• Court: U.S. Court of Appeals — Second Circuit

89 F.2d 629 (1937)

ANDERSON v. BALTIMORE & O. R. CO.

No. 328.

Circuit Court of Appeals, Second Circuit.

April 12, 1937.

Fearey, Allen, Coleman & Johnston, of New York City (Morton L. Fearey and Wm. Paul Allen, both of New York City, of counsel), for appellant.

Harold R. Oakes, of New York City (Robert Schwebel, of New York City, on the brief), for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

SWAN, Circuit Judge.

The plaintiff's decedent met his death while employed by the defendant as a fireman on a pusher engine coupled to the rear of an interstate freight train. He was survived by his widow and four children. This action was brought under the Federal Employers' Liability Act (45 U.S.C.A. § 51 et seq.), the wrongful act relied upon being an alleged violation of the Boiler Inspection Act 1924, § 2 (45 U.S.C.A. § 23) and rule 120 of the Interstate Commerce Commission promulgated thereunder requiring locomotives to be "equipped with proper sanding apparatus, which shall be maintained in safe and suitable condition for service and tested before each trip." At the conclusion of the evidence, the District Court directed a verdict for the defendant. The correctness of this ruling is the sole matter presented by this appeal and it raises two questions: (1) Whether there was any evidence of a violation of the Boiler Inspection Act and rule 120 promulgated thereunder, and (2) whether, if there was, the jury could be permitted to find that such violation was the proximate cause of the fireman's death.

The pusher engine was equipped with a sanding apparatus, consisting of two sandboxes above the boiler, from each of which two pipes of an inch and a half diameter led down, one either side of the engine, to a point two inches above the rail and two inches in front of the forward drive wheel of each set of drivers. Before the trip started the apparatus was tested and found to be working satisfactorily. After having proceeded about thirteen miles to Stanley, a grade was reached on which it was necessary to use the sanders. Here it was found that the apparatus failed to deliver sand to the rails and that the drivers began to slip and spin until finally the train was stalled. There was evidence from which the jury might reasonably infer that before the train had come to a complete stop Anderson got off the engine on the left side and walked forward to the sand pipes for the purpose of tapping them with a pick to get the sand to flow; and that while stooping over to look at one of the pipes he got in the way of an engine of the Erie Railroad coming from the opposite direction around a curve on the adjacent track. He was struck by the pilot beam and instantly killed. After the train had stalled, Cobb, the engineer, tapped a little wet sand from the ends of each of the pipes on each side of the engine, and thereafter the sanders functioned properly to the end of Cobb's run.

The defendant contends that, since the evidence shows without contradiction that the sanders worked both before and after the accident, their temporary failure could not have been due to any mechanical or functional defect but resulted from the clogging of the sand at the end of the pipes because of weather conditions. It was a rainy day in July, but the rain was not of unusual or extraordinary severity. When the rails are wet is the precise time when the sanders are needed, and the plaintiff argues persuasively that an apparatus which will become clogged so that it cannot function during an ordinary summer rain does not comply with the rule requiring a "proper sanding apparatus, which shall be maintained in safe and suitable condition for service." The engineer testified that the sand is blown by air from the box through the pipes; that the flow of air is controlled by the operation of valves in the engine cab; and that the valves were wide open from the time the train left Stanley until it stalled. We think that the failure of the apparatus to function when operated in a proper manner and under normal working conditions makes a prima facie case of insufficiency either in the air pressure or in mechanical construction. The doctrine of res ipsa loquitur has frequently been applied to prove, in the absence of explanation, a violation of provisions of the Safety Appliance Acts (45 U. S.C.A. § 1 et seq.). See Spokane & Inland R. Co. v. Campbell, 241 U.S. 497, 505, 36 S.Ct. 683, 60 L.Ed. 1125; Minneapolis & St. Louis R. Co. v. Gotschall, 244 U.S. 66, 67, 37 S.Ct. 598, 61 L.Ed. 995; Philadelphia & R. Ry. Co. v. Eisenhart, 280 F. 271, 275 (C.C.A.3); Didinger v. Pennsylvania R. Co., 39 F.(2d) 798, 799 (C.C.A. 6); Detroit T. & I. R. Co. v. Hahn, 47 F.(2d) 59, 60 (C.C.A.6). The case at bar presents a very different situation from that of grease on a handhold or ice on the running board, as in Ford v. New York, N. H. & H. R. Co., 54 F.(2d) 342 (C.C.A.2). No handhold is made which may not become smeared with grease from greasy hands, and no running board which will not become icy in...