Capital Traction Co. v. McKeon
| Decision Date | 16 January 1918 |
| Docket Number | 53. |
| Citation | 103 A. 314,132 Md. 79 |
| Parties | CAPITOL TRACTION CO. v. McKEON. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court, Montgomery County; Edward C. Peter and Glenn H. Worthington, Judges.
Action by Thomas Richard McKeon, by Lawrence E. Brown, his next friend, against the Capitol Traction Company, a corporation. From a judgment for plaintiff, defendant appeals. Affirmed.
Argued before BOYD, C.J., and BRISCOE, BURKE, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.
G Thomas Dunlop and Arthur Peter, both of Washington, D. C for appellant.
Charles W. Prettyman, of Rockville (John A. Garrett and Talbott & Prettyman, all of Rockville, on the brief), for appellee.
The appellant, the Capitol Traction Company, owns and operates an electric railway in the city of Washington with its lines extending into Montgomery county, Md. The appellee, Thomas Richard McKeon, was prior to, and on, the 13th day of May 1916, employed by said company as an assistant fireman at the company's power house in the District of Columbia. On the morning of the 13th day of May, 1916, while the plaintiff was at work in the performance of his duties, he suffered personal injuries caused by the explosion of a steam pipe, tube, or coil in one of the defendant's boilers located in the power house; and this suit was brought to recover for such injuries.
In the trial of the case below the jury, by its verdict, awarded him damages to the extent of $2,000, and a judgment was entered upon the verdict for said sum. It is from that judgment this appeal is taken.
It will be necessary for us to go somewhat fully into the facts of this case, as the defendant by its first prayer, which was refused, asked that the case be taken from the jury because of a want of legally sufficient evidence to entitle the plaintiff to recover.
The declaration charges that the defendant, wholly disregarding its duty, negligently permitted said hot water coil to become impaired so that it was unsafe and dangerous to the life of the plaintiff, and said defendant "did not use due care, caution, and diligence in the care, inspection, and operation of said hot water coil, but permitted the same to corrode, rust, and weaken, so that the said coil was unable to carry the amount of steam, water, and vapor that was necessary to operate said electrical plant," causing the coil of the boiler to explode resulting in the injuries complained of. It is contended by the defendant that there is no evidence of the negligence charged against it in the declaration from which the accident resulted legally sufficient to go to the jury, and that its first prayer should have been granted.
The plaintiff at the time of the accident was about 19 years of age, and had been in the employment of the company for nearly four years. His duties consisted of oiling the pumps, lighting the stoker engines, and helping the firemen. In the power house there are 12 boilers used in generating electricity for the operation of defendant's street railway lines in the District of Columbia and Maryland. Four of these are regularly operated each month, one is banked and held in reserve for two months, and the others are out of service for two months, at the expiration of said periods those in service are taken out of service, and a like number of the others put in service for the same period, so that each boiler is in service one month and out of service two months. The boilers are arranged in two rows of six each, facing each other, with a firing alley between them, and under each boiler is a furnace or a fire box. The pipes or tubes, which we will hereafter refer to as tubes, are of iron, and are four inches in diameter. In each boiler there are 14 rows of tubes, one above the other, with 21 tubes in each row, with a space of two or three inches between them.
The plaintiff testified that he on the morning of the accident was getting No. 1 boiler, the reserve boiler, ready to start up, "and just as he got the grate down" he heard a big explosion in boiler No. 7, directly across the alley, and from it came fire and steam, knocking one Harvey, an employé of the company, against him, throwing them both to the ground, and burning the plaintiff about the arms, chest, legs, face, and ears.
At the time of and prior to the accident William Walter Locke was employed by the defendant company as foreman of the boiler room. He, in addition to other duties, was required to clean, inspect, and keep in repair the boilers and other machinery connected therewith, and to whom his subordinates were required to report any and all imperfection in the boilers, etc., that came to their knowledge.
In the employment of the company at this time was a younger brother of the plaintiff, George McKeon, whose duties and compensation were the same as those of his brother; he, however, worked at night while the plaintiff was on duty in the daytime. They both had to assist in cleaning and keeping clean the boilers. This involved the removal, by means of an air hose, of the dirt and soot that accumulated between the tubes of the boiler so that the flames could freely pass between the tubes.
The pipe on the end of said air hose was what is known as a three-eights inch pipe, about three-fourths of an inch in diameter on the outside. As we have said, the tubes of the boiler were about two inches apart, and it was between them that the hose pipe was inserted to clean therefrom the accumulated dirt and soot. This was done by each of the boys.
George testified that about the 8th or 9th day of May, four or five days before the happening of the accident, he noticed that the hose pipe would not go in between the tubes and would "work hard in there," that there was not enough room for the pipe to go in, and he told Locke about it, telling him that the tube was swelled and he "could not half blow out the tubes"; that he reported these facts twice to Locke, the first time on the next morning, after discovering the same, and Locke said, "That is nothing; that will not hurt anything." He further testified that he blew the tubes the night before the accident, and that the tubes on that night were so swelled that he could not get his three-eighths inch pipe in there, and that such condition had lasted for three, four, or six days; that prior thereto there had been no trouble. He also stated that it was his further duty when he found any defect to notify the head fireman, Wigginton, and that he notified him before notifying Locke of the difficulty he had experienced in cleaning the tubes.
Upon cross-examination the witness testified that the back of the tubes was blown by steam, by the fireman, while the front of the tubes was blown by the witness by the use of an air hose, inserted through the holes upon the side of the boiler; that he could not get the air pipe between the second row from the bottom, but had no trouble with any others. It was only the one row, and that the tube where the trouble existed was halfway across the boiler from the air pipe hole, and was on the side opposite him. He further testified that he did not know whether his brother had noticed it; he had not said anything to him about it. He also stated in his cross-examination that, when he first reported the trouble to Locke, he said to him that the defect was in No. 7 boiler, and that he could find it; "that there is something wrong with those tubes; I could not get the rod back in there to get the dirt off; there seems to be something wrong with them." And Locke replied that he would look after it. When reported to Locke on the second occasion, he told him that "those boilers are the same way; they are getting dirty, and I couldn't do anything with them; I couldn't get them clean." Locke in reply thereto said he "had not yet had time to fix it, to keep on going."
After the accident the defective part where it exploded was cut from the tube, and a piece was also cut from one end of it. These were shown to both James R. Gearhart and Robert E. Monroe, the former in charge of the Gerlick-Henderson Company of New York, Chicago, and Pittsburg, the business of which company is to inspect car wheels, axles, boiler plates, boiler tubes, etc., and the latter chief boiler inspector for the Hartford Boiler Inspection & Insurance Company of Hartford, Conn. Gearhart testified that the variations in the thickness of the tube were such that it would have been rejected if inspected by him before being placed in the boiler; that at the point where the tube exploded the metal was exceptionally thin.
Monroe when asked for his opinion as to the cause of the explosion, said "there was an appreciable difference in the thickness of the metal between the top part and the two sides; usually the tubes are uniform, but this does not appear to be one of that kind; it appears to have been considerably thinner at the point at which it burst;" and he did not think it could possibly have been as thick and stretched out to that extent, but he supposes in the rupture it thinned a little more than it was previous to the failure; that there was no evidence of deterioration in the tube in question by corrosion, overheating, or otherwise, and no evidence of blisters or bulging. In his opinion the explosion was caused by an original defect in the tube, both in structure and in quality of material, that is, chemically and physically. He further testified that it would not have been possible to discover the chemical defects in the tube even before it was put in place in the boiler, though it would have been quite possible to discover an unusual variation in thickness at the ends; but, "if it had been discovered a few days prior to the explosion that there was a bulge in the tube, it would have...
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