Albrecht v. Chi. & N. W. Ry. Co.

• Decision Date: 08 January 1901
• Court: Wisconsin Supreme Court
• Parties: ALBRECHT v. CHICAGO & N. W. RY. CO.

108 Wis. 530

84 N.W. 882

ALBRECHT

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

Jan. 8, 1901.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by Frank J. Albrecht against the Chicago & Northwestern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Action for personal injuries. The wrong complained of was negligence of the defendant in failing to furnish plaintiff a reasonably safe place to work. Plaintiff was a locomotive fireman. The defect in his working place was absence of a metallic shield commonly placed in front of the indicator glass on the appliance for supplying the steam cylinders of the engine with oil. The appliance was located conspicuously in the engine cab so that the occupants thereof could see by observation, at any time when the indicator glass was exposed to view, whether it was supplied with oil and whether oil was regularly and properly flowing from the magazine to the steam cylinders. The mechanism of the appliance, the connections between it and the steam boiler, its location and operation, so far as relates to this case, were substantially as follows: There was a cylinder about five inches in diameter and six inches high, on top of which was a small expansion chamber about four inches high, with a connection between the two. In the bottom of the cylinder was a connection about two inches in length furnished with a stopcock, so that when the device, by means of such connection, was attached to the boiler, steam could be made to pass through such connection to the cylinder or not, it being governed by the stopcock. The passage of steam into the cylinder was necessary to the operation of the device. The steam created a pressure therein equal to the pressure in the boiler. In front of the cylinder near the top was an aperture for charging such cylinder with oil, the aperture being closed by a plug. At the sides of the cylinder were two glass tubes, each about one-half inch in diameter and one and one-half inches long, connected with the cylinder substantially in the manner water indicator glasses are connected with a steam boiler. Such glass tubes were protected from being broken by force from without, and in case of their being broken by force from within, the flying of glass and other substances imperiling the personal safety of the occupants of the cab was prevented, by shields, completely encircling them, consisting of metallic strips about one-fourth of an inch wide, placed about one-fourth of an inch apart and one-half inch from the glass. When the device was in operation oil passed from the cylinder or oil magazine through the side indicator glasses in drops in reaching the steam cylinders. By observing the side glasses one could readily see whether the device was operating properly. In front of the oil magazine was located a glass tube about four inches long and one-half inch in diameter, attached to and connected with the cylinder in the same manner as a steam boiler indicator glass, its purpose being to enable an observer to see whether the cylinder was supplied with oil and the amount thereof, as before stated. There was commonly placed in front of the glass a metallic plate held in place by slots into which the ends were inserted, the plate being bent so that when in position with the concave side towards the glass it would pass in front thereof about one-half way around on each side and be about one-half of an inch from the glass. The purpose of the shield was to protect the glass from force from without, and, in case of its bursting from any cause, to prevent pieces thereof or other substances thereby released from imperiling the personal safety of the occupants of the cab. There was no way of observing the glass, to determine whether the device was supplied with oil, without removing the shield by the hand. A simple movement only was necessary for that purpose. It required but an instant to remove the shield and replace it after taking an observation. The entire length of the device was about fourteen inches. It was attached to the boiler at the top and just in front of the cylinder head, the point of attachment being about one foot above the head of a person of plaintiff's height as he stood upright on the cab floor.

On the occasion of plaintiff's injury there was no shield on the large indicator glass. The glass was well recognized as a part liable to break at any time, and liable to stand use for a long period of time without breaking, though the probability of its breaking with dangerous consequences to the occupants of the cab in case of a shield not being in place was such that such a protection was recognized as required by reasonable prudence. Plaintiff was fully acquainted with the dangers mentioned. His knowledge in that regard was exceptionally great. He had some eight years' experience as fireman before receiving his injury, during which time he had known of several explosions of lubricator glasses, on one of which occasions he received a personal injury. The stock of shields to draw from in case of need was usually kept in the storeroom at the roundhouse, and the only way the engineer had of getting one was by a written requisition. The course of business in handling a locomotive was for the engineer in charge to turn it over to the roundhouse foreman at the end of his trip with a report of its condition, and for such foreman to turn it over to the engineer next in order to take it out in proper condition for service. On the occasion material to this case the locomotive was taken out with plaintiff as the fireman. There was no shield on the indicator glass and had not been for several days. He knew about 5 o'clock in the afternoon that he was going on the trip, and the locomotive to be used, being informed thereof by the roundhouse foreman. He had never before made a trip on that particular engine. He saw it at the time of receiving notice from the roundhouse foreman as aforesaid, and performed some duties in and around the same in respect to putting it in order for the trip, such as filling the lamps and looking after the supply of oil. About 7:15 p. m. he boarded the engine and found the engineer there. He filled the pump lubricator and did his duties in respect to making ready for the trip. About 8 o'clock, as the engine was backed out of the roundhouse, plaintiff observed that the front indicator shield, before mentioned, was not in place, and informed the engineer of that fact. Immediately thereafter the plaintiff looked in his seat box to find a shield, and failing in that he remarked to the engineer, “You must get a shield for this lubricator,” to which the engineer replied, “All right, I will get one.” By reason of some delay in the railway service the engine did not proceed on its trip till about two hours after the conversation related occurred, during which time plaintiff was in and out of the cab and performed his duties in keeping up the fire and keeping the engine ready to start as soon as orders were received to do so. The engineer, in the meantime, was out of the cab some, his whereabouts not being all of the time known to plaintiff. The engine during all of the time was located a considerable distance from the roundhouse, and the engineer had little opportunity to obtain a shield without his movements in that regard being brought to plaintiff's attention. Plaintiff testified that after the conversation with the engineer he paid no further attention to whether the promise to obtain a shield was kept or whether there was a shield on the indicator glass. There was evidence to the effect that the engineer had no authority to hire or discharge his fireman. There was no evidence as to the duty being intrusted to the engineer to see that the shield was kept on the lubricator glass. Plaintiff had proceeded on his trip about 50 miles and arrived at Kewaskum station before the injury occurred. At such station, while waiting for a train to pass, about 1 o'clock a. m., plaintiff was standing beside his seat box eating his lunch, when the lubricator glass burst and flying pieces of glass struck him in the face causing him to involuntarily move backward and fall out of the cab to the ground, striking on his back, thereby receiving severe injuries. Plaintiff admitted on the trial that he had previously testified under oath that he knew all the time the condition of the lubricator and that such testimony was true. There was also evidence tending to establish or establishing what has been related, and there was other evidence upon which it was claimed by plaintiff's counsel that the failure to have the shield on the lubricator glass rendered plaintiff's position in the cab unreasonably dangerous; that he submitted to such danger relying on the promise of the engineer, made at the time the engine left the roundhouse, to supply a shield for the glass; and that up to the time of the accident he was ignorant of the engineer's failure to keep such promise.

At the close of the evidence counsel moved the court for the direction of a verdict, which motion was denied. The case was then, under instructions from the court, submitted to the jury for a special verdict, with substantially the following result:

(1) Plaintiff was injured by an explosion of the lubricator on defendant's engine December 24, 1897.

(2) The glass was not protected by a shield at the time of the accident.

(3) The defendant was guilty of a want of ordinary care in omitting to have the shield in place.

(4) When plaintiff left the roundhouse he informed the engineer of the absence of the shield.

(5) Thereupon the engineer promised to procure a shield.

(6) Such promise was not performed.

(7) Plaintiff did not know when he started on his trip that no shield had been placed on the lubricator.

(9) He continued his work relying on the engineer's promise.

(10) His continuance, relying upon the engineer's promise,...