Burmaster v. T. & P.-M. P. Terminal R. R. of New Orleans
| Citation | 6 La.App. 778 |
| Decision Date | 11 April 1927 |
| Docket Number | 10,425 |
| Parties | BURMASTER v. T. & P.-M. P. TERMINAL R. R. OF NEW ORLEANS |
| Court | Court of Appeal of Louisiana — District of US |
Rehearing Refused May 23, 1927.
Writ of Certiorari and Review Denied by Supreme Court July 12, 1927.
Appeal from Twenty-fourth Judicial District Court, Parish of Jefferson. Hon. R. L. Rivarde, Judge.
Action by John J Burmaster against Texas & Pacific-Missouri Pacific Terminal Railroad of New Orleans.
There was judgment for plaintiff and defendant appealed.
Suit dismissed.
F. A Middleton, Chas. J. Larkin, of New Orleans, attorneys for plaintiff, appellee.
Dufour & St. Paul, Jno. E. Fleury, of New Orleans, attorneys for defendant, appellant.
This is a suit filed May 29, 1922, by a locomotive engineer for forty-three thousand, eight hundred fifty dollars ($ 43,850) damages for personal injury caused by explosion of his engine while engaged in interstate commerce and switching cars loaded with bananas from the yards of defendant in New Orleans to their transfer boat on the Mississippi River.
Defendant answered admitting the employment and the explosion but denying all negligence and especially averring that plaintiff's injuries were the result of his own gross carelessness, negligence and imprudence.
The case was tried before a jury on December 11th and 14th, 1925 and a verdict was given for the amount claimed. On December 18th the judge of the lower court rendered judgment based on that verdict.
On January 11, 1926, the motion for new trial was refused in the following words:
On January 13, 1926, a suspensive appeal was taken to this court.
The suit was brought under the Federal Employers' Liability Act, passed by Congress on April 22, 1908, C. 149, 35 Stat. 65, 66 (Comp. St. Par. 8569) and under the Federal Boiler Inspection Act of Congress of February 17, 1911, as amended March 4, 1915 (Comp. St. 8630-8639).
Paragraph VI of plaintiff's petition, the crucial paragraph in so far as this suit is concerned, reads as follows:
"That the explosion in said engine was caused by the gross fault, negligence and want of care of the Trans-Mississippi Terminal Railroad Co., its officers, agents and employees that the engine furnished petitioner was not safe or in good condition, but was defective, badly constructed and in need of repair; that the crown sheet was defective and not sufficiently strong to withstand the pressure of steam, and was not properly fastened that the boiler and injectors were in bad condition; that the water glass was in bad condition, and that the engine was not equipped with the necessary safety appliances or safeguards against accident as required by law; that defendant neglected to provide the said engine with the necessary appurtenances, and failed to take the usual and necessary steps to inspect and repair the same, although it knew or should have known the condition thereof; and that petitioner had no knowledge of the defective condition of said engine or of the neglect of defendant to keep the same in good condition, and was not guilty of any fault or negligence which in any manner contributed to the injuries suffered by him."
The following facts are undisputed:
1. That plaintiff, who had been employed by defendant company or its subsidiaries for fourteen years as fireman and eleven years as engineer, had had charge of Engine 319 for a period of thirty or thirty-five minutes when the boiler exploded about two o'clock on the morning of June 1, 1921, on the incline leading from the ferry boat to the railroad yard.
2. That he was discharged by the company on account of this explosion.
3. That his fireman, Israel, who had been employed by the company about four years at the time of the accident has been made an engineer and was still in the employ at the time of the trial.
4. That Engine 319 was taken out of the round house of the company by the hostler on the west bank of the river shortly after midnight with steam up; that the injectors and water glass were then in good condition and working properly; that the engine was brought by a switch engine to the ferry boat in charge of Charles Evans, engine watchman, a colored man who says that he opened the water glass at the bottom, turned the water out and then shut water off and the water came back in the glass showing two gauges of water; that Hostler Sims, who was on the engine at the time, turned on the right injector and he turned on the left; that he had been lighting fires at the roundhouse for five years.
5. Evans swears that you can see if an injector is not working by the way she primes and by the water flowing out-side and the injector's kicking the steam back in the tank if "she isn't bringing up her water" and that on the way to the boat he had the injector on and was getting up steam; that he heard the water and the whistle and that she had water enough for two or three hours; that he put the fires out going down the incline and left the engine with 145 pounds of steam.
6. That the boat crossed the river with the engine and a yard master named Dawson, who was not in the employ of the company and did not testify at the trial, lighted the fire in the engine, hauled some cars off the ferry boat and placed the engine upon a side track in the yard.
7. That plaintiff then came up, tried his gauge cocks which showed two gauges of water and went around the engine with his oil can before he took charge of the engine; that he then did some switching, took hold of some cars to be placed on the transfer boat, and having lined them up, took them on the transfer boat and placed them in the proper position upon the boat and returned to a position near the office of the general yardmaster, where he remained about ten minutes; that he then switched another string of cars and took them down to the transfer boat and was returning up the incline leading from the transfer boat to the city yards when he first heard a sound like a bursted air hose and a second or two later an explosion occurred which blew him up against the top of the iron cab, after which he fell out upon the incline and across the iron rail, striking his leg upon the rail; that the explosion was attended with considerable gas, smoke, soot and brick dust from the broken fire box; that he inhaled considerable of this mixture and complained about it immediately afterward and while in the Presbyterian Hospital, where he was taken and remained for six days.
Although there are many charges of negligence and much evidence was taken in an attempt to sustain these charges, it was admitted by plaintiff's attorney after a detailed thorough argument in this court that the explosion was caused by letting the water get too low in the boiler and the issue was reduced to the cause of this scarcity of water.
Plaintiff's brief outlines the negligence charged as follows:
1st. Because Engine 319, which exploded, was equipped with a faulty waterglass designed for the information and protection of the engineer and fireman in charge of said engine, and which equipment, being faulty, supplied to the engineer and fireman false information; and with faulty injectors which failed to replenish the boiler when operated.
2nd. Because the said mechanism referred to in paragraph 1 was disarranged and made faulty and unreliable by the acts of one Evans, an ignorant negro, who was placed in charge of said engine from the time that it left the water tank in the Gouldsboro yards until it was placed upon the transfer boat for removal to the New Orleans side of the river.
3rd. Because said mechanism above referred to in paragraphs 1 and 2 was made faulty and unreliable and disarranged by one Dawson, yardmaster of the defendant company, in the city of New Orleans yards, who, without authority, and against the rules of the company, went upon the transfer boat when it landed on the New Orleans side of the river, built the fires in said engine, operated said engine and equipment, in moving five cars from said transfer boat and up to and into the said railroad yards, switching said cars upon one track and then cutting loose from said cars and proceeding up another track.
Defendant argues that the evidence shows the following facts:
1. That even if the water-glass was defective, which is denied, plaintiff paid no attention to it, but relied entirely on his water gauges to test the amount of water and, therefore, the defect in the water-glass, if any, was not a contributing cause of the accident.
2. That the injectors were working properly and if they had not been carrying water into the boiler, plaintiff would necessarily have known.
On page six of his testimony, plaintiff says, And again on page eleven he says, ...
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