Bellamy v. EAGLE PICHER LEAD CO.

• Decision Date: 20 March 1929
• Docket Number: No. 8137.,8137.
• Citation: 31 F.2d 662
• Parties: BELLAMY v. EAGLE PICHER LEAD CO.
• Court: U.S. Court of Appeals — Eighth Circuit

31 F.2d 662 (1929)

BELLAMY v. EAGLE PICHER LEAD CO.

No. 8137.

Circuit Court of Appeals, Eighth Circuit.

March 20, 1929.

D. W. Peters, of Jefferson City, Mo. (A. J. Bolinger, of Versailles, Mo., on the brief), for plaintiff in error.

Wayne Ely, of St. Louis, Mo., for defendant in error.

Before STONE and KENYON, Circuit Judges, and JOHNSON, District Judge.

STONE, Circuit Judge.

This is an action for personal injuries. From a judgment entered on a directed verdict at the conclusion of the plaintiff's case, this writ of error is sued out.

The sole issue is the sufficiency of the evidence to authorize submission of the case to the jury. The facts, as shown by the evidence most favorable to the plaintiff, are as follows: The defendant owned a strip lead mine with a mill near Mineral Point, Mo. The operations of the company, in general, consisted in excavating the mineral, which was a short distance below the surface, with a steam shovel which loaded the material on small cars. These cars were hauled from the mine to the mill by a small engine, called a "dinkey" engine. The engine and the cars ran on a track, which was about a quarter of a mile long, between the mine and the mill. The superintendent of the plant was named Richards. Among those under him were Ray Kempf, whose ordinary duties were to operate the steam shovel at the mine, and plaintiff, who operated the "dinkey" engine as engineer. Plaintiff had one assistant, who acted as a brakeman, but who had nothing to do with the operation of the engine, as plaintiff was both engineer and fireman. Plaintiff had nothing to do with the operation of the steam shovel, and Kempf had nothing to do, ordinarily, with the operation of the engine. When Richards was not at the plant, Kempf was in charge, and gave orders to, and directed the work of, plaintiff and of others. On the day of the accident to plaintiff, Richards was not at the plant, and Kempf was in charge over plaintiff.

About noon of the day in question, plaintiff cut the engine loose from the ore cars, and started backing it down to get water for it. After a short distance, the engine left the rails. Plaintiff took the re-railers and got the engine back upon the track, when he discovered that the "packing box" had come off. At that time, the engine was in reverse, and the track was on a slight grade; the uphill direction being to the rear of the engine. Desiring to stop and hold the engine so that he could replace the "packing box," and because there was no neutral point on the throttle, plaintiff shut off the steam, left the engine in reverse, set the brake, and put a block under the uphill side of the wheels in order to hold it stationary. He then crawled under the engine from the rear,...