Drew v. St. Louissa Francisco Ry. Co.

• Decision Date: 08 March 1927
• Docket Number: No. 19698.,19698.
• Citation: 293 S.W. 468
• Parties: DREW v. ST. LOUISSA FRANCISCO RY. CO.
• Court: Missouri Court of Appeals

293 S.W. 468

DREW v. ST. LOUISSA FRANCISCO RY. CO.

No. 19698.

St. Louis Court of Appeals. Missouri.

March 8, 1927.

Rehearing Denied April 22, 1927.

Appeal from St. Louis Circuit Court; Erwin G. Ossing, Judge.

Action by Ross Drew against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

E. T. Miller and A. P. Stewart, both of St. Louis, and C. H. Skinker, Jr., of Springfield, for appellant.

Charles P. Noell, of St. Louis (Glen Mohler, of St. Louis, of counsel), for respondent.

BECKER, J.

This is an action by plaintiff, a fireman on defendant's railroad, engaged in interstate commerce, and arising under the provisions of the acts of Congress known as the "Boiler Inspection Act" (Act of Feb. 17, 1911, c. 103, § 2, 36 Stat. 913 [U. S. Comp. Stat. 1916, § 8631], as amended by the Act of March 4, 1915, c. 169, § 1 [U. S. Comp. Stat. 1916, § 8639a)), and the federal Employ ers' Liability Act (Act of April 22, 1908, 35 Stat. GO, c. 149, §§ 3, 4 [U. S. Comp. St. §§ 8659, 8660]), on account of a defective locomotive furnished for his use by the defendant, the petition alleging that the cylinder cocks on the left side of the engine were broken, by reason of which steam escaped from the cylinder on the left side thereof, striking the ground and right of way of the defendant with great force, which caused small particles of dust, dirt, and cinders to be "violently and with great force blown through the air and into the cab of the engine and against the eyes and face of plaintiff, resulting in injury to plaintiff's left eye."

The answer was a general denial and a plea of assumption of risk.

The trial resulted in a verdict for plaintiff in the sum of $7,500. In due course the defendant appeals.

One of the assignments of error here urged is that the demurrer to the evidence should have been sustained and the peremptory instruction requested at the close of the whole case should have been given. In support of this contention it is argued that the evidence showed conclusively that if plaintiff received any injury on the occasion in question it was directly caused by the sole negligence of plaintiff in failing to close a window on the left side of the cab, and that there is therefore no liability under the federal Employers' Liability, or under the Safety Appliance Acts (U. S. Comp. St. § 8605 et seq.). And it is further contended that the demurrer should have been sustained in that under the evidence it was purely a matter of speculation and conjecture as to whether or not the defective vision of plaintiff's left eye was the result of injuries alleged to have been sustained on the occasion in question, or the result of injuries admittedly sustained to this same eye on two prior occasions.

After reading the record before us we are of the opinion and so hold that plaintiff made out a case for the jury, and therefore that the court correctly ruled the demurrer and the peremptory instruction requested at the close of the whole case.

According to plaintiff's own testimony he had been a locomotive fireman for some six years prior to September 16, 1922, on which day he was working for the defendant as a fireman on a.freight train between Newburg avid St. Louis, in the state of Missouri; that of the occasion in question the train contained cars en route from Prairie Grove, Ark., avid from Scullin, Okl., to St. Louis, Mo.; that when the freight train had gotten 3 or 4 miles out of Newburg, and distant about 115 miles southwest of St. Louis, the cylinder cocks on the left side of the engine broke loose and allowed steam to come out and strike the ground and throw up dust and dirt, which came back along the left side of tie engine and through the window of the engine cab and was blown against the face and into the eyes of plaintiff; that when the train reached Rolla the engineer examined the cylinder cocks, and, finding that they could not be fixed without a great deal of work, the train proceeded to Sullivan; and that just east of Sullivan a combination lever on the right side of the engine gave way, which necessitated the working of the engine from the left side only, which caused still more steam to escape out of the cylinder cocks rear the front of the engine on the left-hand side, causing dust, sand, and small cinders to be stirred up by this steam striking the ground, so that "there was just a fog of dust [.round the engine, and those cab windows on this type of engine in front has got nothing snore than a looking glass in front, and therefore, they keep them shut at all times, and being warm weather then, I had my side windows open to get air and keep from getting hot"; that as fireman it was his duty to sit on the left-hand side of the engine cab and operate the stoker engine which feeds the coal into the engine automatically, and assist the engineer in keeping a lookout for signals and obstructions, and to look back frequently to know that the train has not parted.

On cross-examination plaintiff stated that the engine was equipped with a small window on the left side of the cab in front of the fireman's seat, but that this window was closed during the trip, and also that there was a storm window projecting out from the side of the cab at right angles, to protect his head and face when it became necessary to stick his head out of the window. On redirect examination, in answer to the question as to what effect the dirt and cinders beating upon the windows had, "with reference to dirtying them so that you could not see through them," he answered, "it would dirty them up so you could not see through them."

On cross-examination of plaintiff he testified that when he was 10 or 11 years old he got a sliver in his left eye pretty close to the pupil, just on the edge of the white of the eye; that it did not interfere, however, with his vision; and that in October, 1918, while working as a fireman for the defendant, he got a hot cinder in his left eye, which caused him to be confined to the Frisco Hospital in St. Louis for treatment for a period of 60 days; and that this injury left a scar on the left eye. Without objection he was permitted to testify that for this latter injury he gave the company a release without getting any money for it, and that ...