Baltimore & O.R. Co. v. Groeger
| Citation | 288 F. 321 |
| Decision Date | 13 April 1923 |
| Docket Number | 3775. |
| Parties | BALTIMORE & O.R. CO. v. GROEGER. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
W. T Kinder, of Cleveland, Ohio (Tolles, Hogsett, Ginn & Morley and J. P. Wood, all of Cleveland, Ohio, on the brief), for plaintiff in error.
E. C Chapman, of Cleveland, Ohio, for defendant in error.
On the morning of September 3, 1920, a freight engine belonging to the Baltimore & Ohio Railroad Company, and engaged in the transportation of interstate traffic, exploded near Proctor W. Va., killing John C. Groeger, the engineer in charge of the engine, the fireman, and the head brakeman, who constituted the engine crew at the time of the explosion. Freda Groeger, as administratrix of the estate of John C Groeger, deceased, brought an action in the District Court against the Baltimore & Ohio Railroad Company to recover damages, under the federal Employer's Liability Act (Comp. St. Secs. 8657-8665), for wrongfully causing the death of her intestate.
The amended petition alleges several specific acts of negligence, two of which the trial court took from the jury because they were unsupported by any evidence. The others, being related to the same subject-matter, the court consolidated into two, which in substance are as follows: (1) In permitting a dangerous condition to exist in the engine. (2) In failing to equip this boiler with a fusible plug. The answer of the defendant admitted the formal averments of the petition and denied each and every other allegation therein contained.
At the close of plaintiff's case, and again at the close of all the evidence, the defendant moved for a directed verdict, which motions were overruled by the court and exceptions noted. Exceptions were also taken by the defendant to certain rulings of the court and to specific parts of the court's charge to the jury. The jury returned a verdict for the plaintiff. A motion for new trial was overruled, and judgment entered upon the verdict.
Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.
DONAHUE Circuit Judge (after stating the facts as above).
It is contended upon the part of the plaintiff in error that this verdict is not sustained by any substantial evidence. It is provided by rule 25 of the Interstate Commerce Commission that:
'No boiler shall be allowed to remain in service when there are two adjacent staybolts broken or plugged in any part of the firebox or combustion chamber, nor when three or more are broken or plugged in a circle 4 feet in diameter, nor when five or more are broken or plugged in the entire boiler.'
The uncontradicted evidence establishes the fact that at and prior to the time this boiler exploded there were seven staybolts broken-- one staybolt at the forward part of the crown sheet; three intermediate stays on the right side of the crown sheet within a radius of 16 inches, two of which were adjacent; and three on the left side, two of which were within 8 inches of each other, and the third within 12 inches of the other two.
The operation of this engine with these broken staybolts was in violation of rule 25 of the Interstate Commerce Commission, in that more than five bolts were broken; in that two of these broken bolts were adjacent; in that three of these bolts on the right side of the boiler were within a radius of 18 inches and three on the left side of the boiler within a radius of 8 inches. It is claimed, however, on the part of the plaintiff in error that there is no evidence whatever that these broken staybolts contributed in any way to the explosion, but, on the contrary, that the testimony of experts tends to prove that they contributed in no way whatever to the tear of the crown sheet and the consequent explosion of the boiler.
Expert evidence in reference to the ultimate question of fact for the determination of a jury may be helpful, but is not controlling. Notwithstanding this expert evidence, the question was one for the jury to decide, from all the evidence, whether these broken staybolts caused or contributed to the explosion. That question was properly submitted to the jury by the trial court.
Wholly apart from these broken staybolts, there is sufficient evidence in this record as to the defective condition of this engine in other respects to sustain the verdict of the jury.
It is claimed on behalf of the plaintiff in error that the explosion of this engine was caused by low water. There is evidence in this record tending to prove that the boiler was in a leaking condition; that 'it was leaking up around the front and the side-- the fire was dead; and that when the door of the fire box was open the steam came out with a gush.'
There is also evidence tending to prove that the engine took water at Foster's Tower, about three miles from the place where it exploded, that water was supplied from the tank to the boiler by two injectors, and that at Foster's Tower both of these injectors were working. If it were conceded that low water caused this explosion, the natural inference from this evidence would be that the engine was in such a defective and leaky condition that water could not be supplied fast enough...
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