O'Dea v. Byram

• Decision Date: 14 December 1928
• Docket Number: No. 27013.,27013.
• Parties: O'DEA v. BYRAM et al.
• Court: Minnesota Supreme Court

222 N.W. 519

176 Minn. 67

O'DEA v. BYRAM et al.

No. 27013.

Supreme Court of Minnesota.

December 14, 1928.

Appeal from District Court, Swift County; Harold Baker, Judge.

Action by James O'Dea against H. E. Byram and others, as receivers of Chicago, Milwaukee & St. Paul Railway Company, insolvent. Judgment for defendant, and plaintiff appeals. Affirmed.

Davis & Michel, of Minneapolis, and John I. Davis, of Benson, for appellant.

F. W. Root, C. O. Newcomb, and A. C. Erdall, all of Minneapolis, and J. A. Lee, of Benson, for respondents.

OLSEN, C.

For convenience we speak of the railway company as the defendant herein.

Plaintiff sued to recover damages for personal injury. A jury returned a verdict in his favor. On defendant's motion for judgment notwithstanding the verdict or for a new trial, the court granted judgment for defendant, and plaintiff appeals therefrom.

Plaintiff was working as a fireman on a locomotive of the defendant railway company at the time he claims to have been injured. Defendant was a carrier engaged in interstate commerce, and plaintiff was employed therein at the time. Plaintiff bases his action on the Federal Boiler Inspection Act, 43 Stat. at Large p. 659; sections 22-34, title 45, U. S. Code (45 USCA). The questions presented are whether there is any evidence reasonably tending to support findings by the jury that there was a violation of this federal law, and that such violation was a proximate cause of injury to plaintiff. The federal act requires such a carrier to have and keep its locomotives and all parts thereof and appurtenances thereto in proper condition and safe to operate in the service to which they are put, so that same may be employed in the active service of the carrier without unnecessary peril to life or limb. The act further provides for inspection service as therein set forth.

As held in the recent case of Larsen v. N. P. R. Co., 175 Minn. 1, 220 N. W. 159, the act does not make the carrier an insurer, but it imposes upon the carrier the absolute and continuous duty to have its locomotives equipped with parts and appurtenances which are safe when in their normal place, and a violation of the act constitutes negligence which, if found a proximate contributing cause of an employee's injury, renders the carrier liable therefor. Plaintiff has the burden of proving a violation of the act and that injury resulted to him therefrom. He must also prove that he came within the protection of the act, that he was within the class for whose protection the act was intended. The Boiler Inspection Act is to be read and applied with the Federal Employers' Liability Act. 45 USCA §§ 51-59. The employee will not be held guilty of contributory negligence, or to have assumed the risk, if a violation of the act contributed to cause his injury. Baltimore & O. R. Co. v. Groeger, 266 U. S. 521, 45 S. Ct. 169, 69 L. Ed. 419.

Attached to the front of the fire box of the locomotive, partly below the floor of the cab, was a standard appliance for turning or shaking the fire grates so as to drop and remove ashes and clinkers therefrom. In a general way it resembles and operates on the same principle as appliances in common use for shaking the grates in heating and other steam plants, but is more strongly made and of heavier material — all iron. Its operation is simple, and there is nothing about it likely to get out of order. There is a stub projecting outward and upward some eight inches. A removable iron bar or handle some four and a half feet long is provided, which at one end fits over this stub and is used as a lever to operate the appliance. When the grates are to be shaken or turned, this handle is fitted over the stub and is then pushed back and forth, describing part of an arch at its outer end. This movement turns or shakes the grates. When the operation commences, the handlebar projects out at a small upward angle so that the outer end is some distance above the floor of the cab. The movement consists in grasping the handle at or near its outer end and swinging it upward and forward towards the boiler and then bringing it back. When not in use, the handlebar...