Clyde v. Richmond & D.R. Co.

• Citation: 65 F. 482
• Parties: CLYDE et al. v. RICHMOND & D.R. CO. (ELLIOTT, Intervener).
• Decision Date: 10 December 1894
• Court: U.S. District Court — Northern District of Georgia

65 F. 482

CLYDE et al. v. RICHMOND & D.R. CO. (ELLIOTT, Intervener).

United States Circuit Court, N.D. Georgia.

December 10, 1894

A railroad company which buys a locomotive from reliable builders discharges its duty by applying ordinary tests to determine its strength and efficiency, and is not bound to employ experts or apply the highest tests.

By virtue of an order of the circuit court of the United States for the Northern district of Georgia, the above-stated intervention was referred to the undersigned, as special master, for hearing and report upon the law and facts connected therewith. Assignment of the case for trial was made, and due notice of the time and place appointed for the hearing was given to the parties plaintiff and defendant. At the appointed time and place, the plaintiff and defendant appeared by counsel, and the case proceeded to a hearing upon the testimony which had been taken on a former trial. An agreement of counsel is hereto attached, which will show the testimony agreed on. It was also agreed by the parties that in the event a finding should be made for the intervener, the sum allowed should be $10,000, and that the date of the finding should be fixed on the . . . day of January, 1894.

Statement of the Case.

The plaintiff contended that at the time of his injury he was an employe of the Central Railroad & Banking Company as head yard coupler, and that while in the discharge of his duty, in Atlanta, he was stricken by a piece of engine boiler or dome which was blown from a locomotive in the possession and control of defendant, and that such piece was thrown off by the explosion of said boiler or dome, brought about by the negligence of defendant. The particular acts of negligence were: (1) That more steam was allowed to accumulate than the boiler had capacity to contain. (2) That said dome was so insecurely fastened to the boiler as to render it dangerous, and liable to explode, which defect was known to the defendant. (3) That, on account of the large size and construction of said locomotive, it was not suited to defendant's road, and required great care and diligence on the part of the defendant, which defendant failed to exercise. (4) That said dome was negligently and defectively made and put together and that such defects were either known or should have been known to the defendant. (5) That the explosion of said boiler was caused by the defective condition of the injector or pump, and that it failed to pump sufficient water into the boiler, which caused the boiler to become hot, and to generate an excessive and dangerous quantity of steam. (6) That the safety or 'pop' valve was defective and out of order, and it failed to allow steam to escape when it accumulated to an excessive amount, and that the defects in said injector and pop valve were or should have been known to the defendant. The defendant entered a general denial of the plaintiff's allegation, but contended that, if the dome was defective, it did not render the defendant liable because it had purchased said locomotive from a reputable manufactory, and had a right to rely upon its proper construction, and was not bound to make such examination as required tearing up the machine or dismantling it to the degree necessary to have determined that such defects did or did not exist. Defendant says that it made all reasonable tests, and it is specially denied that the locomotive was improperly handled, or that either the pop valve or the injector were out of order.

Findings and Report.

The special master, in determining the questions of fact, labors under the disadvantage of not having had the witnesses before him, and hearing and seeing them testify; but from the testimony some of the points at issue can be solved without difficulty; others with great difficulty. He finds and reports as follows: (1) The plaintiff, at the time of his injury, was in good health, was 26 years of age, and was earning $45 per month. (2) At the time of his injury the plaintiff was head coupler for the engine of the Central Railroad on which he worked, and, at the time of his injury was engaged in the performance of his duty, and was entirely free from fault. (3) The crew to which the plaintiff belonged were at a part of the railroad where they had a right to be and were there by consent of defendant, to deliver cars to its road. (4) The defendant owed to the plaintiff ordinary care, and not that extraordinary care which it would owe to a passenger. (5) The dome ring or dome which exploded was carelessly and negligently constructed. The locomotive works which made it were negligent in making it, were negligent in not discovering the defects after it was made, and were negligent in delivering it to defendant to operate upon its line of road. (6) The evidence preponderates in favor of the proposition that competent servants of the locomotive works would or could have known that the method which they must have pursued in casting that particular dome would not have produced a good and safe job. In attempting to account for its defective condition, they assign a reason which other testimony proclaims an improper method. (7) The evidence shows that the defects could have been discovered by 'sounding,' when the polishing was done, and when the holes were bored for the rivets. (8) The testimony and examination of the exploded dome shows that the locomotive works did not subject the dome to proper tests, or it would then have given away. An examination of the broken parts...