Bower v. Chicago & Northwestern Railway Co.

• Decision Date: 23 June 1914
• Docket Number: 17,574
• Citation: 148 N.W. 145,96 Neb. 419
• Parties: WILLIAM BOWER, APPELLEE, v. CHICAGO & NORTHWESTERN RAILWAY COMPANY, APPELLANT
• Court: Nebraska Supreme Court

148 N.W. 145

96 Neb. 419

WILLIAM BOWER, APPELLEE, v. CHICAGO & NORTHWESTERN RAILWAY COMPANY, APPELLANT

No. 17,574

Supreme Court of Nebraska

June 23, 1914

APPEAL from the district court for Holt county: WILLIAM H. WESTOVER JUDGE. Affirmed.

AFFIRMED.

A. A McLaughlin, Edgar R. Hart and Wymer Dressler, for appellant.

M. F Harrington, contra.

OPINION

FAWCETT, J.

Plaintiff was a locomotive engineer in the employ of defendant. On November 28, 1910, while engaged in filling the lubricator upon his engine, a glass attachment to the lubricator, which was surrounded by a metal shield, exploded and blew off the shield, which struck plaintiff in the left eye, causing an injury which necessitated the removal of the eye, for which injury he obtained a judgment in the district court for Holt county. Defendant appeals.

Defendant complains that the court erred in refusing to instruct the jury that, "under the pleadings and evidence in this case, plaintiff is not entitled to recover, and your verdict will be for the defendant." A number of reasons are urged in the argument why this instruction should have been given, one of which is that by his petition plaintiff based his right to recover upon the Federal Employers' Liability Act of April 22, 1908, and that there is no evidence in the record that plaintiff at the time he received his injury was engaged in interstate commerce, nor any evidence to show that the train, to which he alleges his engine was about to be attached, was so engaged. While the evidence of the interstate character of trains "3" and "6" is not as clear and satisfactory as it could and should have been made, we think it was sufficient to take the case to the jury on that point. Plaintiff testified that he had been hauling trains 3 and 6 for about three years, "3" running west, and "6" running east. "Q. These were what they call the through trains? A. Yes, sir." The witness Mackey testified that he had been an engineer for defendant 20 years, running on the "Black Hills division;" that the headquarters for that division is Chadron. The witness Walford testified to the same facts. The witness Collins testified that he was a locomotive engineer in the employ of defendant. "Q. On what division? A. On what is called the Black Hills division; that is, west of Long Pine. Q. Where is the headquarters of that division? A. Chadron." He testified further that he had been employed on the Black Hills division as an engineer for 21 years. We take judicial notice of the fact that the Black Hills are in South Dakota. We think we may also take judicial notice of the fact, well known to every citizen of even ordinary intelligence in the state of Nebraska, that the western terminus of defendant's road which runs through Long Pine is in the Black Hills. With these facts established, and the further fact established by the evidence that Long Pine is a division point on the Black Hills division, of which Chadron is the headquarters, the testimony of plaintiff that trains 3 and 6 were through trains meant that they were trains running through the Black Hills division, which would be from Long Pine to the Black Hills. Being such trains, they were interstate trains, engaged in interstate business, and plaintiff, when running his engine hauling one of those trains, or when upon his engine preparing it to be attached to one of such trains for the purpose of hauling it would be engaged in interstate business. We think the evidence sufficiently shows that at the time he was injured he was preparing his engine to haul train No. 3.

It is further urged that the court erred in overruling defendant's motion for an instructed verdict made at the close of all the testimony. The ground of this motion was that all of the evidence given upon the trial failed to establish the acts of negligence charged against defendant in the petition, and that the evidence shows without contradiction or dispute that whatever risk there was incident to the use and operation of the lubricator upon his engine was one of the ordinary risks incident to his employment and assumed by him. This is the most important point in the case. The evidence shows that attached to each locomotive engine is a lubricator, and that as a part of such lubricator there is a glass attachment which is called by the witnesses "the lubricator." At the time of plaintiff's injury defendant was using two kinds of lubricators, one called the "Nathan," and the other the "Bull's Eye." The Nathan is a hollow tube while the Bull's Eye is flat and solid. Plaintiff's engine was equipped with a "Nathan." Both lubricators were so connected with the boiler of the locomotive as to permit the steam pressure to force the oil through the lubricator and into the parts of the locomotive for which the same was intended. This was necessary because the engineer must be able to see at all times that the oil is dropping and that the lubricators are performing their functions. When in full use, either lubricator was required to sustain the same steam pressure as the boiler. The Nathan lubricator had been in use for over 20 years, and had been used on all of the engines of the defendant down to between two to four years before the time when plaintiff received his injury, when the Bull's Eye made its appearance. The evidence shows that the Nathan lubricator was liable to and did frequently break. The three conditions under which it was most liable to break were: (1) When it was first installed and before it had been thoroughly "tempered;" (2) when subjected to a sudden change of temperature; and (3) after it had been used for some time and had worn thin. Over each of the Nathan lubricators there was a metal shield, divided in the center by a spring which, by a simple movement of the hand, could be removed from the glass lubricator or replaced. This shield was evidently designed to serve a double purpose: (a) To prevent the glass from being broken if anything hard should strike it; and (b) to prevent injury to the engineer from flying parts of the glass when a break occurred. When one of these tubes would break it would be replaced by another, either by a man at the roundhouse or by the engineer himself, if upon the road. This, according to the evidence, would occasion a delay to the train of from 12 to 20 minutes. The witnesses all agree that the Bull's Eye is unbreakable; that is to say, none of the witnesses, including a number of old engineers and the foreman of defendant's roundhouse in Chicago, had ever heard of one breaking. Whenever one of the Nathan tubes broke it was the duty of the engineer to report the fact to the proper official of the defendant. The evidence shows that after the tube had been in use for some little time it would occasionally wear thin. When it became so worn the fact could be detected by the engineer, and it would then be his duty to call for a new tube. That plaintiff must have been a competent and careful engineer is shown by the fact that in 25 years' service as an engineer only three of these tubes had broken on engines being run by him; the one that caused his injury, one three weeks before that time, and the other seven years prior thereto. As a witness he was very frank and candid. He testified that he had never heard of any one being injured by the breaking of one of the tubes; that he at all times believed that the tube was strong enough to withstand the same steam pressure as the boiler of his locomotive; that he never thought there was any danger in using the tube; that he had no fear of it. He was asked: "Q. Now, Mr. Bower, can you think of anybody connected with the operating part of the railroad that would know more about that lubricator and the shield, and the danger connected with the use of it on an engine, than an engineer that had been using it for 25 years? A. No; I don't know as I do. Q. And don't you think that at the time you got hurt you knew as much about this lubricator and as much about the danger of its use as any man in the service of the Northwestern railroad? A. Well, I thought--it was my understanding and I was always taught to believe the glass would stand the pressure of the boiler. Q. And it is a fact that this glass had been standing the pressure of the boiler for three weeks? A. Yes, sir; that is the fact." When Mr. Bower gave this testimony he gave it frankly, feeling that he in fact did know as much about this lubricator and the shield and the danger incident to the use of it on an engine as anybody connected with the operating department of the railroad; but the testimony of defendant's foreman of its roundhouse in Chicago shows that in this Mr. Bower was mistaken. The witness Harner, called by the defendant, testified that he lives in Chicago, and is foreman of defendant's roundhouse at Fortieth street in that city. On cross-examination he testified: "Q. When did they first begin using the Bull's Eye lubricator? A. To my knowledge about, I think pretty close to, three years ago. Q. Didn't they use them in 1906 at Chadron? A. Well, I wasn't (at) Chadron. Q. You weren't? A. No, sir. Q. Your own personal knowledge is about three years? A. Yes; about three years, or even less than that, if anything. Q. What kind or class of engines were they using them on? A. On the Q engines, when I first observed them. Q. To what extent are the Bull's Eye lubricators used on the Q engines now? A. Well, I don't know. Q. Well, are they using this old Nathan lubricator on many of the engines now? A. There is, I think, probably 25 per cent. Q. Of the engines that use the Nathan lubricator? A. Yes. Q. About 25 per cent. of all of them? A. I think so. You understand that is a rough estimate; I have no means of knowing what other divisions might have. Q. But in the...