Chicago, B. & Q. R. Co. v. Murray

• Decision Date: 21 May 1929
• Docket Number: 1540
• Citation: 40 Wyo. 324,277 P. 703
• Parties: CHICAGO, B. & Q. R. CO. v. MURRAY [*]
• Court: Wyoming Supreme Court

277 P. 703

40 Wyo. 324

CHICAGO, B. & Q. R. CO. v. MURRAY ^[*]

No. 1540

Supreme Court of Wyoming

May 21, 1929

ERROR to District Court, Natrona County; BRYANT S. CROMER, Judge.

Action by James W. Murray against C. B. & Q. R. R. Co. There was a judgment for plaintiff, and defendant brings error.

Reversed and Remanded.

For the plaintiff in error, there was a brief by Hagens & Murane, and Nichols & Stirrett, all of Casper, and oral argument by A. E Stirrett & C. D. Murane.

The Federal statutes material to the controversy, are Sections 8657, 8659, U. S. Code, and Section 2, of the Boiler Inspection Act as amended June 7, 1924. The rule of assumption of risk applies in all cases of injury, except where a violation of the Federal statutes enacted for the safety of employees is shown to have been violated by the employer. So. Rwy. Co. v. Crockett, 235 U.S. 725, 58 L.Ed. 1565; So. P. Co. v. De La Cruz, 228 S.W. 108; Smithers v. Rwy. Co., (Tex.) 272 S.W. 765; C. &amp N.W. Rwy. Co. v. Ott, 33 Wyo. 212; Sims v. Ry. Co. (Mich.) 162 N.W. 989. Plaintiff failed to establish such violation. The trial court erred in not submitting the case to the jury upon principles of common law negligence, and in refusing defendant's instructions, numbered "C" and "H" at the trial. There being no proof of violation of Federal statutes, plaintiff had the burden of showing defendants actual or constructive knowledge of the defect. Barrett v. Rwy. Co., C. C. A. (4th), 244 F. 399; Ry. Co. v. Ingram, (Ark.) 187 S.W. 453; Ry. Co. v. Andrews, 96 S.W. 183. Defendant's proof failed in this respect. If a servant use appliances for purposes, other than that for which they are intended, he takes the risk of injuries from such use, and the master is not liable. An injury arising out of the improper use of appliances does not justify the inference of negligence. C. R. & I. P. v. Murray, (Ark.) 109 S.W. 549; Fanyjoy v. Seals, 29 Cal. 243; Graham v. Ry. Co., 62 F. 896; Freeman v. Garrets, (Tex.) 196 S.W. 506; R. R. Co. v. Conarty, 283 U.S. 243; Lang v. R. R. Co., 255 U.S. 452; Hahn v. R. R. Co., (Minn.) 196 N.W. 257; Campbell v. So. P., (Ore.) 250 P. 624; Wilson v. R. R. Co., (Mo.) 5 S.W.2d 19; N. O. & N.E. R. Co. v. Scarlet, 240 U.S. 528; St. Louis I. M. & S. R. Co. v. Schultz, (Ark.) 171 S.W. 876. The trial court erred in refusing to direct a verdict. Motey v. Co., 74 F. 157; C. C. A. (8th); Gilbert v. Ry. Co., 128 F. 533; Boswell v. Bank, 16 Wyo. 161; Carney Coal Co. v. Benedict, 22 Wyo. 369; C. B. & Q. R. R. Co. v. Cook, 18 Wyo. 49. In submitting the question of custom to the jury, the evidence must show that such custom was universal, notorious, uniform, certain and known. Ry. Co. v. Lindeman, 143 F. 946; C. C. A. (8th); Ins. Co. v. Waterman, 54 F. 839, C. C. A. (5th); Gilbert v. Ry. Co., 128 F. 533, C. C. A. (8th); C. R. I. P. v. Murray, supra. The measure of damages is the amount of future payments, or what the plaintiff might earn, reduced to their present value only. C. & O. v. Kelley, 241 U.S. 491; C. & N.W. v. Ott, supra. The court erred in admitting over defendant's objection, testimony given by plaintiff, detailing conversations with Dr. Lathrop, as shown at pages 84 and 87 of the record. The court erred in not admitting in evidence the inspector's report of Sept. 16, 1926, marked "I" for identification. The court erred in giving Instructions No. 2, 7, 9 and 14. The exclusion of testimony offered by witness Melker was erroneous. The court also erred in permitting plaintiff to call for cross examination, employees of defendant who were not parties.

For the defendant in error, there was a brief by R. R. Rose of Casper, and L. A. Kiplinger, and oral argument by R. R. Rose.

The case as alleged by plaintiff's petition is governed by Federal Employees Liability Act, U.S.C. S. 1916, Sec. 8657-8660; 35 Stats. 65; and Boiler Inspection Act, 8631, U.S.C. S. 1916, Feb. 17, 1911, as amended; also the Safety Appliance Act, 8605, 8609, U.S.C. S. 1916. The Boiler Inspection Act is to be liberally construed. L. & N. R. Co. v. Layton, 61 L.Ed. 931; P. & R. R. Co. v. Eisenhart, 280 F. 271; Great Northern Railway Co. v. Donaldson, 62 L.Ed. 616. A common carrier is obligated to comply with the foregoing acts. R. R. Co. v. Taylor, 52 L.Ed. 1061; Delk v. R. R. Co., 55 L.Ed. 590; R. R. Co. v. U.S. 55 L.Ed. 582; Ford v. McAdoo, 178 N.Y.S. 631; L. V. R. Co. v. Beltz, 10 Fed. (2nd) 74. A common carrier incurs liability by its neglect to comply with the above statutes; every part and appliance of the locomotive, is within the provisions of the federal acts referred to. A violation is negligence per se. Neither contributory negligence, nor assumption of risk, is available to defendant. Whatever fault, if any there was, on the part of plaintiff, was what would at common law, have amounted to contributory negligence or assumed risk. Ford v. McAdoo, supra; L. V. R. Co. v. Howell, 6 Fed (2d) 784; Ry. Co. v. Wagner, 60 L.Ed. 1110; Moore v. R. R. Co., 186 S.W. 1035; R. R. Co. v. Groeger, 69 L.Ed. 419; Boyle v. R. R. Co., 71 P. 988. The following safety appliance cases apply. R. R. Co. v. Taylor, 52 L.Ed. 1061; R. R. Co. v. King, 169 F. 372; R. R. Co. v. U.S. 55 L.Ed. 582; and cases cited therein. Delk v. R. R. Co., 55 L.Ed. 590; R. R. Co. v. Rigsby, 60 L.Ed. 874; R. R. Co. v. Wagner, 60 L.Ed. 1110; R. R. Co. v. Brown, 67 L.Ed. 1204, and cases cited. The liability of defendant springs from violation of the Safety Appliance Act, and not from the position of the injured employee. Johnson v. Great Northern Railway Co., 178 F. 643; R. R. Co. v. Gotschall, 61 L.Ed. 995; Director Gen'l. v. Ronald, 265 F. 138; Ewing v. Ry. Co., 96 S.E. 73; R. R. Co. v. Eisenhart, 280 F. 271; Davis, Agt. v. Wolfe, 68 L.Ed. 284. The case of Lehigh Valley R. Co. v. Powell, 10 F.2d 74, is quite similar as to questions of fact involved in the case at bar. The following are cases wherein the doctrine was applied in connection with the Boiler Inspection Act. R. R. Co. v. Donaldson, 62 L.Ed. 616; Ford v. McAdoo, supra; Frye v. R. R. Co. , 195 N.W. 629; Hines v. Smith, 275 F. 766; R. R. Co. v. Groeger, 69 L.Ed. 419; R. R. Co. v. Beltz, 10 F.2d 74. At common law the master is liable for injuries to an employee by reason of a defective appliance only, when such employer is making use of the appliance, as under all the circumstances, is a reasonable and proper use. Coates v. R. R. Co., 10 L. R. A. 769; Prosser v. Rwy. Co., 30 L. R. A. 814; Boyle v. R. R. Co., 71 P. 988; Woods v. R. R. Co., 52 S.E. 371; Lyle v. Rwy. Co., 145 F. 611. The foregoing are common law cases, although we feel that the case at bar comes clearly within the provisions of the federal acts. See also Dupree v. Tamborilla, 66 S.W. 595; Briner v. Ry. Co., 85 S.W. 653; Wallace v. Ry. Co., 54 S.E. 399; Lyle v. Ry. Co., 145 F. 611; Donk Bros. v. Rezloff, 82 N.W. 214. In none of these cases cited by the other side, was the intended use rule recognized. We believe that practically none of the cases cited by counsel for plaintiff in error support their contention, when the facts in each of them are compared with the facts in the case at bar. We do not believe that defendant's instruction "J" ought to have been given, or that it was error to refuse it, when the rule announced by this court in the Ott case is considered. Objections to the admission of evidence are waived by demurrer to the evidence, or by a motion to dismiss, or to direct a verdict, or by objecting to a withdrawal of the evidence. The case falls within the provisions of the Federal Employers' Act, and the so-called Boiler Inspection Act. We believe that there is no error in the record, and that the judgment ought to be sustained.

KIMBALL, Justice. BLUME, C. J., and RINER, J., concur.

OPINION

KIMBALL, Justice.

The plaintiff sued for damages for personal injuries alleged to have been caused by defendant's negligence. The plaintiff obtained a verdict and judgment for $ 28,500, and defendant brings the case here by proceeding in error.

It is conceded that at the time of plaintiff's injury both he and defendant were engaged in interstate commerce, and that the case is controlled by applicable federal laws.

The plaintiff was employed by defendant as a locomotive engineer operating steam-propelled locomotives. He claimed that his injury was caused by a defect in a part of the sanding apparatus of the locomotive on which he was working. A rule promulgated by the interstate commerce commission under authority of the Boiler Inspection Act, cited infra, provided (Rule 120) that:

"Locomotives shall be equipped with proper sanding apparatus, which shall be maintained in safe and suitable condition for service, and tested before each trip."

The supply of sand on the locomotive in question is contained in a receptacle called the "sand dome," which is about 2 1/2 feet in diameter, 2 feet in height, and located on top of the front half of the boiler. There are two methods of transferring the sand from this dome to the rails. One is by force of compressed air, and that is the usual method of use when compressed air is available for that purpose. The apparatus for operating the sander by that method is called the "air sander." The other method is by lever that opens valves in the bottom of the sand dome permitting the sand to flow by gravity to the rails. This method of operating the sander is customarily resorted to when the air sander will not work, and is referred to as an emergency or secondary method. The apparatus for operating the sander by this method is called the "hand sander."

The hand sander is controlled from the cab of the locomotive by the movement by hand of a "reach rod." This reach rod is an iron tube or pipe, about 18 feet in length, and 3/4 inch outside diameter. One end of it is in...