Atlantic Coast Line R. Co. v. Wetherington

• Decision Date: 20 January 1944
• Docket Number: 3 Div. 406.
• Parties: ATLANTIC COAST LINE R. CO. v. WETHERINGTON.
• Court: Alabama Supreme Court

16 So.2d 720

245 Ala. 313

ATLANTIC COAST LINE R. CO. v. WETHERINGTON.

3 Div. 406.

Supreme Court of Alabama

January 20, 1944

Rehearing Denied March 2, 1944.

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge. [Copyrighted Material Omitted]

Count 1 of the complaint is as follows:

"Count One: The plaintiff claims of the defendant the sum of One Hundred Thousand ($100,000.00) Dollars as damages for that on, to-wit, May 7, 1942 the defendant was a common carrier engaged in operating a railroad from the City of Bainbridge Georgia West towards the State of Alabama, and as such engaged in interstate commerce; on such date the plaintiff's intestate, James S. Wetherington, was a servant or employee of said defendant, and as such engaged in interstate commerce, and while in such service or business of the defendant and on a locomotive on a train of the defendant engaged in such interstate commerce, and while in the discharge of his duties about two miles West of West Bainbridge, Georgia, on May 7th, 1942, the boiler on the said locomotive or train upon which plaintiff's said intestate was as aforesaid burst or exploded, and thereby and as the proximate result thereof plaintiff's said intestate was injured and killed.

"And plaintiff further avers that the said injury to and death of plaintiff's said intestate resulted in whole or in part by reason of a defect or insufficiency due to the defendant's negligence in its said engine locomotive or boiler.

"And plaintiff further avers that her said intestate left surviving him this plaintiff as his widow; that she was dependent upon her said husband and has suffered pecuniary loss by reason of his death. Wherefore the plaintiff claims damages from the defendant as aforesaid."

Count 2 contains this averment:

"And plaintiff further avers that the said injury to and death of plaintiff's said intestate resulted in whole or in part by reason of a defect or insufficiency due to the defendant's negligence in its engines, appliances or other equipment in this, to-wit: the defendant used or permitted to be used on its said line said locomotive when said locomotive or its boiler or parts or appurtenances thereof were not in proper condition and safe to operate in the service to which the same were put, or when the same could not be employed in the active service of the defendant without unnecessary peril to life or limb."

Evans Hinson and A. H. Arrington, both of Montgomery, and W. L. Lee and Alto V. Lee, III, both of Dothan, for appellant.

Hill, Hill, Whiting & Rives, of Montgomery, for appellee.

FOSTER, Justice.

The questions on this appeal arise from a judgment for plaintiff against appellant for the death of plaintiff's intestate caused by the explosion of the boiler of a locomotive while decedent was operating it as the engineer. The suit was brought under the Federal Employers' Liability Act, Title 45, Section 51, U.S.C.A., based on the Boiler Inspection Act of Congress,-Title 45, section 23, U.S.C.A.,-which provides "It shall be unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb."

The chief question is whether the explosion was caused by the fact that the boiler or some of its parts or appurtenances as offered by defendant to plaintiff's intestate for use and used on that occasion were not in proper condition or safe to be operated in service at the time, without unnecessary peril to the life or limb of the engineer, in violation of the Federal Act, supra, or, on the other hand, was it caused solely by the failure of the engineer (deceased) properly to operate the engine at the time.

If the improper operation of the engine at the time was the sole proximate cause of the explosion, and death of plaintiff's intestate, there can be no recovery on this complaint. Baltimore & O. R. Co. v. Groeger, 266 U.S. 521, 45 S.Ct. 169, 69 L.Ed. 419; Ehalt v. McCarthy, Utah, 138 P.2d 639.

The improper or unsafe condition of the boiler may result either from some mechanical defect or because of some matter added to it which when so added and used created such improper or unsafe condition as described in the Boiler Inspection Act. Lilly v. Grand Trunk Western R. Co., 317 U.S. 481, 63 S.Ct. 347, 87 L.Ed. ---; Ehalt v. McCarthy, supra. We quote as follows from the Lilly case, supra, 63 S.Ct. at page 352: "From various cases denying recovery under the Act respondent attempts to extract a general rule that the Act covers only defects in construction or mechanical operation and affords no protection against the presence of dangerous objects or foreign matter. But there is no warrant in the language of the Act for construing it so narrowly, or for denying the Commission power to remedy shortcomings, other than purely mechanical defects, which may make operation unsafe. The Act without limitation speaks of equipment 'in proper condition and safe to operate * * * without unnecessary peril to life or limb'. Conditions other than mechanical imperfections can plainly render equipment unsafe to operate without unnecessary peril to life or limb."

No question of negligence in fact by the railroad company or contributory negligence by deceased are involved in this case. Lilly v. Grand Trunk Western R. Co., supra.

The explosion could have been attributable on the evidence either (1) solely to the manner of operating the engine, by negligently permitting the water in the boiler to get too low and thereby allowing the crown sheet to overheat, and then explode when water was added, without the appliance or the water in it being defective; or (2) to the defective sort of water used in the boiler which caused the chemical reaction of "foaming," which prevented the water gauge from accurately disclosing the amount of water in the boiler, and causing an unusual exhaustion of the water in the boiler. If the explosion was caused solely by the first hypothesis, there is no cause of action as here set out.

But we think that the principle of Lilly v. Grand Trunk Western R. Co., supra, justifies us in holding that if the second phase of the foregoing hypothesis was a proximate contributing cause of the explosion, there is a cause of action contained in the complaint, though the boiler and all of its appurtenances were otherwise in proper and safe condition. However, it was twenty-six years old, and there was no evidence of a boiler inspection as required by the Act.

All the trainmen on that engine were killed by the explosion, so that there is no direct evidence of how it occurred or what brought it about, or what they did in that connection. Of the two probable causes, the plaintiff has the burden to show that the defective condition described above existed and was proximately contributory to the explosion. There is no evidence which justifies the finding of a cause other than one of the two which we have named above. It is not sufficient that it might have been due to a defect. A verdict cannot rest on speculation or conjecture. There must be evidence which justifies a reasonable inference that it was a defect rather than that the negligence of the engineer was the sole proximate cause. If there was a defect which proximately contributed to the explosion, the negligence of the engineer, if there was any, also contributing, would not prevent a recovery in this action, based on the Boiler Inspection Act, supra. The cases cited above so hold.

But if there is a finding that he was not negligent, then there was circumstantial evidence with that cause eliminated, all of which would justify a further finding that there was a defect as described, which was a proximate cause.

It is said in Rose v. Stephens & Condit Transp. Co., C.C., 11 F. 438, 439, that "Boilers do not usually explode when they are in safe condition, and are properly managed, [therefore] the inference that [a] boiler was not in safe condition, or was not properly managed, was justifiable." 22 Amer.Jur. 215, section 98; Kleinman v. Banner Laundry Co., 150 Minn. 515, 186 N.W. 123, 23 A.L.R. 484, 485.

So we inquire-was the engineer negligent? There is a presumption of law, rebuttable to be sure, that every person in possession of his normal faculties in a situation known to be dangerous to himself will give heed to instincts of safety and self-preservation to exercise ordinary care for his own personal protection, and in the absence of proof to the contrary that he performed his duty in that respect. It is founded on a law of nature and has for its motive the fear of pain or death. 20...