Crosswhite v. Southern Ry. Co

• Decision Date: 18 January 1943
• Citation: 23 S.E.2d 777
• Parties: CROSSWHITE . v. SOUTHERN RY. CO.
• Court: Virginia Supreme Court

23 S.E.2d 777

CROSSWHITE .

v.SOUTHERN RY. CO.

Supreme Court of Appeals of Virginia.

Jan. 18, 1943.

Error to Circuit Court, Washington County; Walter H. Robertson, Judge.

Action by W. T. Crosswhite, administrator of the estate of Jacob M. Faulkner, deceased, against the Southern Railway Company for the wrongful death of plaintiff's intestate. Judgment for defendant, and plaintiff brings error.

Affirmed.

Before HUDGINS, GREGORY, EG-GLESTON, and SPRATLEY, JJ.

Jones & Woodward, of Bristol, for plaintiff in error.

Thomas B. Gay, of Richmond, Robert L. Pennington, of Bristol, and Wirt P. Marks, Jr., of Richmond, for defendant in error.

SPRATLEY, Justice.

W. T. Crosswhite, administrator of the estate of Jacob M. Faulkner, deceased, brought this action against the Southern Railway Company, an interstate commerce carrier, under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq, to recover damages for injuries received which resulted in the death of Jacob M. Faulkner while he was employed as a locomotive engineer of the defendant, the cause of said injuries being the alleged violation by the defendant of the Boiler Inspection Act of 1924, Title 45 U.S.C.A. § 23. The plaintiff seeks to reverse the action of the trial court in setting aside a verdict of the jury in his favor for $5,000 and entering judgment for the defendant.

The Boiler Inspection Act, in part, provides:

"It shall be unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb, * * *."

Under the Federal Employers' Liability Act, it is further provided that the employee protected thereby shall not, if injured or killed, be held to have been guilty of contributory negligence or to have assumed the risk of his employment "in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee." U. S.C.A. 'Title 45, sections 53 and 54.

It is agreed that the sole question for our determination is whether there was evidence which would justify a jury in finding that the steam relief valves on the defendant's engine were so located, constructed, installed or exposed as to be unnecessarily dangerous to life and limb.

This brings us to a consideration of the evidence.

Jacob M. Faulkner was a competent and experienced locomotive engineer. At the time of his injury he was sixty-five years old, and had worked for the Southern Railway Company for fifty-two years.

On the morning of November 17th, 1939, as engineer, he was operating the defendant's Mallet locomotive numbered 4026, pulling a freight train between Appalachia, Virginia, and Bristol, Virginia. The train stopped at Glenita, Virginia, about one o'clock a. m, on November 18th, to take on water. A leakage of steam from the front of the engine had been observed as it approached Glenita. When the train stopped to take on water, Faulkner got out of the front window of his cab onto the right side running board of the engine with his wrench and torch. He walked down that running board to the front of the engine, then turned to the front of the engine, and was not seen again until he had been injured. A minute or two later, he came around the right front of the engine, walking on the ground, with his pants rolled above his knee and his leg badly scalded. He told the brakeman of his train "I have scalded my leg. I slipped and caught my pant leg over this relief valve and scalded my leg." He also saidhe had been in front of the engine tightening a nut on the valve. He got up in the cab without assistance, received some emergency treatment, and then ran the engine to Bristol.

The leakage of steam observed by the engineer came from the terminal check valves at the right front of the engine near to and a short distance above the level of the right side running board. There are terminal valves on each front side of the engine and the purpose of each is to build up and assure sufficient oil pressure to overcome the steam pressure of the cylinders and thus insure lubrication of the sliding cylinder valve.

There are two relief valves, one on each front side of the base of the engine of the locomotive, located in an open pit behind the headlight and about three inches below the platform upon which the headlight stands. This latter platform provides a walk both in front of and behind the headlight, the pit in which the relief valves are located being next to the after platform. The valves are from ten to eighteen inches distant from the flat surface of the platform. In each relief valve, the diameter of which is about four or five inches across the top, there is a stem protruding from the valve sleeve. The purpose of the valve is to allow air to be drawn into the cylinder while the engine is coasting with the steam turned off, so as to relieve the vacuum and prevent excessive wear and pounding of the cylinder. When the throttle is opened, steam from the cylinder closes the relief valve, pushing the valve stem up so that it protrudes beyond the sleeve. When the throttle is closed and the steam pressure is relieved, the weight of the valve causes it to drop and open, so that the steam may escape, the steam being admitted through holes at the base of the valve sleeve. A blow from a hammer or other pressure may also release the steam when it is desired to work on the valves or cylinders.

The photographic exhibits filed with the evidence clearly indicate the valves and their location.

Upon Faulkner's arrival at the railroad yards at Bristol, he was met by J. L. Cant-well, a master mechanic, employed in the defendant's shop. Upon being asked by Cantwell what happened to him, he replied, "I burned my leg." When Cantwell walked up to the pilot beam of the engine, Faulkner said, "No use getting up there. Nothing wrong with the engine. I stepped on the relief valve."

Faulkner then went home, and secured the services of physicians. He subsequently died on November 24, 1939, from his injury, complicated by certain pre-existing diseases of his heart and kidneys. It is not questioned that his burns were the proximate cause of...