Carr v. Am. Locomotive Co.

• Decision Date: 12 July 1910
• Citation: 77 A. 104,31 R.I. 234
• Parties: CARR v. AMERICAN LOCOMOTIVE CO.
• Court: Rhode Island Supreme Court

77 A. 104

31 R.I. 234

CARR

v. AMERICAN LOCOMOTIVE CO.

Supreme Court of Rhode Island.

July 12, 1910.

Exceptions from Superior Court, Providence and Bristol Counties; Darius Baker, Judge.

Action by Peter F. Carr against the American Locomotive Company. There was an order granting a new trial after verdict for plaintiff, and he brings exceptions, and defendant files a bill of exceptions taken at the trial to various rulings and instructions of the presiding justice. Plaintiff's exceptions sustained, defendant's exceptions overruled, and cause remitted to the superior court.

See, also, 75 Atl. 399.

John W. Hogan, for plaintiff.

William A. Morgan and Edwards & Angell (Seeber Edwards and Francis B. Keeney, of counsel), for defendant.

SWEETLAND, J. This is an action of trespass of the case for damages for personal injuries resulting from an accident in the shop of the defendant company on June 28, 1902. The plaintiff was at that time in the employ of the defendant in said shop. The plaintiff had been engaged in such employment for several months prior to the accident, beating rivets for the boilermakers in defendant's boiler shop in certain rivet heaters provided by the defendant for the purpose. At the time of the accident the plaintiff was working at a rivet heater known as an oil heater, provided with a burner adapted for the use of oil as a fuel when applied under pressure, so that oil was burned as it emerged in the form of spray from the burner and entered the furnace of the rivet heater. This burner consisted of a combination of three valves fitted in an upright supply pipe at a convenient point opposite the opening in the furnace of the rivet heater so as to permit the projection of the flame produced by the burning oil under pressure through said opening into the furnace. The top valve controlled the supply of air in the pipe carried under pressure to the burner for the purpose of producing the spray of oil desired for combustion. The bottom valve controlled the supply of oil in the pipe also forced under pressure to the burner. The middle valve controlled the flow of the mingled oil and air, meeting in the burner, and regulated the supply. The burner was provided with a nozzle or nose several inches in length opposite this middle valve and extending into the furnace itself. The middle or burner valve was equipped with a treaded valve stem adapted to screw into the body of the valve. This valve stem, if in good condition when inserted into the body of the valve, required about nine turns to be screwed to its seat in the valve. This valve stem could be wholly unscrewed and withdrawn from the valve, and was not provided with any checking or holding device to prevent its being so unscrewed and withdrawn. The plaintiff claims that the burner valve stem upon the rivet heater, at which he was working at the time of the accident, had become worn in its threads and loose in the valve; that it had been subjected be abuse and injury, while it was being repaired, and its handle replaced some time before the accident; that it was dangerously loose in the valve and that when opened a very few turns, it was liable to be blown out by the pressure of the oil and air. The plaintiff alleges that this unsafe condition of the valve stem was known to the defendant, but was unknown to him. The plaintiff claims that on the morning of the accident he began work by starting a fire in the oil heater in the usual way; that after the fire had been started he undertook to regulate the fire and the flow of oil by turning this middle valve as usual; that he turned the valve stem two or three turns, when the stem blew out past him and fell to the floor some few feet away from the burner; that a stream of oil under pressure immediately followed the valve stem through the opening in the valve, striking against his body with such force that portions of the oil rebounded in the form of spray into the furnace fire, whereby it became ignited, and the flames there thus communicated to the oil then playing upon him from the burner so that he was enveloped in flames, his clothing took fire and his face, neck, chest and arms were badly burned. The case was tried before a justice of the Superior Court and a jury. At the trial, the defendant produced in court as an exhibit marked "Defendant's Exhibit A," a combination of three valves fitted to a pipe, which the defendant claims were the same pipe and valves which were upon the rivet heater, operated by the plaintiff, at the time of the accident, and which the defendant had removed, shortly after the accident, and bad preserved to be offered as an exhibit at the trial. The plaintiff denied that the stem in the middle or burner valve in Exhibit A was the same burner valve stem that was in the appliance at the time of the accident. There can be no question that the burner valve stem in Exhibit A is in good condition. The identity, therefore, of the burner valve stem produced in court became a most important issue before the jury. At the trial the jury returned a verdict for the plaintiff in the sum of $22,895. In addition to its general verdict the jury returned a special verdict upon certain issues submitted to it. These special issues with the jury's findings thereon are as follows: (1) Was the valve stem produced in court as a part of the burner valve in question, and forming a part of defendant's Exhibit A, the stem operated by the plaintiff at the time of the accident? No. If the answer to question 1 be "No," then the jury should answer the following questions: (2) Was the thread of the stem of the burner valve, operated by the plaintiff at the time of the accident, then in good working condition? No. (3) Was the thread in the body of the burner valve, operated by the plaintiff at the time of the accident, then in good working condition? Yes. (4) Did the middle valve stem in the apparatus operated by the plaintiff at the time of the accident blow out of the valve when operated two turns, while being so operated by him? Yes. (5) Were the agents of the defendant company in charge of the boiler-shop notified that the middle valve stem used in said apparatus had blown out of the valve while in operation prior to the accident? Yes.

The defendant duly filed and prosecuted its motion for a new trial in the sujjerior court upon the grounds that the general verdict of the jury and the first, second, fourth, and fifth special findings of the jury were against the evidence and the weight thereof, and that the damages awarded by the jury were excessive. The justice presiding at the trial, after hearing the motion for a new trial, decided that on the issue whether the middle stem of Exhibit A was or not the stem that was on the apparatus at the time of the accident, the weight of the testimony was with the defendant, and granted the motion for new trial. The case is before this court upon the plaintiff's exception to the decision of the Superior Court granting the motion for new trial. The defendant had also filed a bill of its exceptions taken at the trial to various rulings and instructions of the justice presiding. The defendant claims that these rulings and instructions to which it has taken exception constitute reversible error and entitle it to a new trial and urges that if this court should for any reason sustain the plaintiff's bill of exceptions it should not sustain the verdict of the jury, but should order a new trial. We are of the opinion that the procedure of the defendant is proper, and that if the plaintiff's exceptions are sustained, the court should then consider the defendant's exceptions, taken at the trial, and if the defendant's exceptions constitute reversible error, the case should be remitted to the Superior Court for a new trial.

This case has been tried four times. The first trial was in the common pleas division of the Supreme Court and resulted in a disagreement of the jury. The second trial was in the common pleas division of the Supreme Court, and the jury returned a verdict for the plaintiff for $18,000, with a special finding that Exhibit A includes the identical burner valve and stem which were operated by the plaintiff at the time of the accident. Upon petition the appellate division of the Supreme Court granted a new trial. Carr v. American Locomotive Co., 20 R. I. 180, 58 Atl. 678. Upon the establishment of the superior court this case was transferred to that court and the last two trials have been in that court. The third trial resulted in a verdict for the plaintiff for $20,000, with a special finding that the burner valve stem forming a part of Exhibit A was not the stem operated by the plaintiff at the time of the accident. The justice who presided at that trial denied the defendant's motion for a new trial. Upon exception to that decision this court sustained the exception and ordered a new trial. Carr v. American Locomotive Co., 29 R. I. 276, 70 Atl. 196. A fourth and last trial was had with the result herein stated, of a verdict of $22,895, for the plaintiff, with a special finding by the jury that the burner valve stem forming a part of Exhibit A was not the stem operated by the plaintiff at the time of the accident.

It therefore appears that there have been three concurring verdicts in favor of the plaintiff. At the time of the first verdict there was no procedure in this state permitting a review of the jury's finding by the justice presiding at the trial. After the second verdict the justice presiding, acting under such a procedure, after hearing the testimony, denied the motion for a new trial and approved the verdict. The justice presiding at the last trial has decided that the weight of the testimony is with the defendant. After the first and second verdicts this court reviewed the testimony and decided that in its opinion the evidence preponderated in favor of the defendant, and that there should be new trials. And now, after another jury has...