Ehalt v. McCarthy

• Decision Date: 10 June 1943
• Docket Number: 6496
• Citation: 104 Utah 110,138 P.2d 639
• Court: Utah Supreme Court
• Parties: EHALT v. McCARTHY et al

138 P.2d 639

104 Utah 110

EHALT v. McCARTHY et al

No. 6496

Supreme Court of Utah

June 10, 1943

Appeal from District Court, Third District, Salt Lake County; A. H Ellett, Judge.

Action by George Joseph Ehalt against Wilson McCarthy and another trustees of the Denver & Rio Grande Western Railroad Company and another, for injuries sustained allegedly as result of the defendants' violation of the Boiler Inspection Act. From an adverse judgment, the defendants appeal.

Reversed and new trial granted.

Rawlings, Wallace & Black, of Salt Lake City, for appellants.

Van Cott, Riter & Farnsworth and E. C. Jensen, all of Salt Lake City, for respondent.

WOLFE, Chief Justice. LARSON, MOFFAT, and McDONOUGH, JJ., and CLARENCE E. BAKER, District Judge, concur. PRATT, J., on leave of absence.

OPINION

WOLFE, Chief Justice.

The respondent was injured by a boiler explosion while engaged in interstate commerce as an employee of appellants. The trial resulted in a verdict of $ 20,000, from which this appeal was taken. While it is not required to refer specifically to the act or acts of Congress on which the action against a carrier for breach of duty is predicated (Cochran v. Atchison T. & S. F. R. Co., 109 Kan. 303, 198 P. 685) in this case counsel for the plaintiff at the threshold of the trial, in order to avoid the defense of contributory negligence, planted his complaint on the Boiler Inspection Act, Sec. 23, 45 U.S.C.A., rather than on Sec. 51 of the Title 45 generally known as the Federal Employers Liability Act.

The detailed facts as far as necessary to understand our decision are as follows: Plaintiff was a hostler's helper on duty in the yards of the Union Station with hostler Babcock. A hostler ordinarily takes charge of engines which are to be taken to and from the round house to the station or to and from the yard and services them. His helper corresponds to a fireman and on certain roads, of which the Denver & Rio Grande Western Railroad Co. is evidently one, also acts as a yard pilot doing the ground work. Babcock and Ehalt had operated as a team for a considerable length of time and, by arrangement between them Ehalt at times operated the engine under Babcock's supervision. The round house is situated at Burnham, a distance of approximately 2 miles from the Union Station at Denver, Colorado. Passenger train No. 16 arrived at 7:15 a. m. at the Union Depot on February 4, 1941, drawn by locomotive No. 1804. Babcock immediately boarded it but did not check the water level in the boiler, although it was his duty to do so. Babcock sat alone in the engine cab for 13 minutes. At 7:28 a. m. Ehalt boarded it. He found Babcock in the fireman's seat on the left of the cab. Babcock said "Okeh, let her go," and respondent operated the engine, also without looking at the water gauge. He proceeded to run the engine northward over several tracks to 16th Street where it was coupled onto engine No. 1207 to which five cars were attached. This movement consumed about 15 minutes. After the coupling was made, about five more minutes were consumed at the station. At 7:45 after the Burlington Zepher arrived at the station, engine No. 1804, driven by Ehalt, started backing south pulling engine No. 1207 and the five cars. At 15th Street the men observed that the air brakes on engine No. 1207 were "sticking" and Babcock got off to release them. While Babcock was off the engine Ehalt looked into the fire box, found the fire low and "dry and no leaks or anything of that sort." He then started the stoker. The explosion occurred at 7:53 a. m., 25 minutes after Ehalt boarded the engine. He was thrown by the explosion and severely injured. The movement in the yard covered 6 to 8 blocks and took about 15 minutes. It was approximately 1 3/4 miles from the point where the engine and five cars were coupled to the point of the explosion. The grade was ascending and required the making of steam and increased draft. From marks on the inside of the boiler it was determined that at the time of the explosion the water was 36" below the top of the crown sheet.

The Boiler Inspection Act reads as follows:

"23. Use of unsafe locomotives and appurtenances unlawful; inspection and tests. 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, and unless said locomotive, its boiler, tender, and all parts and appurtenances thereof have been inspected from time to time in accordance with the provisions of sections 28, 29, 30, and 32 of this title and are able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for." (Italics added.)

By planting his action on the above act, plaintiff was not embarrassed by any defense of contributory negligence which could have been raised if the action had been founded on secs. 51 to 59 of 45 U.S.C.A., for the reason that the railroad is absolutely liable for injuries which are proximately caused by a failure to comply with the Boiler Inspection Act. Chicago, Burlington & Quincy R. Co. v. Willard, 220 U.S. 413, 31 S.Ct. 460, 55 L.Ed. 521, 61 L.Ed. 874; Baltimore & Ohio Railroad Co. v. Groeger, 266 U.S. 521, 45 S.Ct. 169, 69 L.Ed. 419.

The plaintiff contends that the defendants acting through their agents furnished plaintiff with locomotive No. 1804; that at the time of delivery the crown sheet of said locomotive was overheated due to low water, as result whereof the said locomotive (boiler) blew up; that the delivery by the employee of defendants to plaintiff of a boiler with the water at a low point (at the time of delivery alleged to be approximately 27" below the crown sheet) showed that the carrier had permitted the use of a boiler which was not in a safe and proper condition for operation in the service to which it was assigned and unnecessarily dangerous to life and limb; that it thus failed to comply with the Boiler Inspection Act and is consequently absolutely liable; and that a boiler in such condition was itself a defective boiler.

The defendants contend (1) that their duty to plaintiff was discharged as far as the Boiler Inspection Act was concerned when he was furnished with a locomotive, the boiler, tender and all parts of which were mechanically in proper condition and sufficient and safe to operate; (2) that it is not liable when recovery is sought under that act for injuries which are due to the "negligent act of an employee in the use or misuse of an appliance safe and proper in itself and free from mechanical defect;" and (3) that the proximate and sole cause of this explosion was the act of plaintiff in using the engine for nearly half an hour with the knowledge or easy means of knowledge that the water was out of sight in the gauge.

Until January 11th, 1943, the cases as far as we are able to discern held without exception that Safety Appliance Act, 45 U.S.C.A. § 1 et seq., and the Boiler Inspection Act, 45 U.S.C.A. § 22 et seq., were designed to impose absolute liability on the carrier only for mechanical defects, inadequacies or insufficiencies in equipment, apparatus or appliances.

The case of Baltimore & Ohio Railroad v. Groeger, supra, did not expressly hold that the Boiler Inspection Act was limited to mechanical defects, but held that the jury could (from the evidence of a witness who, at Foster Junction, a station at which not long before the explosion the engine had stopped, observed sizzling of water upon the fire and observed water and steam escaping from the boiler into the firebox and, on opening the firebox door, observed steam gushing out) infer that there was a defect in the boiler. That case has been, however, construed as holding that the Boiler Inspection Act limits the absolute liability of the railroad companies to accidents caused or contributed to by mechanical defects, inadequacies or insufficiencies in apparatus or equipment. Watkins v. Boston & M. R. R., 83 N.H. 10, 138 A. 315.

The view taken in the case of Harlan v. Wabash R. Co., 335 Mo. 414, 73 S.W.2d 749 at page 752, represented the general thought in that regard. The court said:

"Defendant contends, and we think correctly so, that the facts proven do not show or constitute a violation of the Boiler Inspection Act, under our ruling in Riley v. Wabash R. Co., 328 Mo. 910, 44 S.W.2d 136, 139. The evidence here does not show any mechanical defect from use or originally in the engine or any appliance thereof. It was not a mechanical defect or any faulty construction to have a trapdoor in the floor of the engine cab for the purpose of affording access to the coal conveyor operating underneath the floor. Such was proper and necessary in case this mechanical stoker became clogged or needed adjustment or repair. The trapdoor was without defect and operated safely in the way and for the purpose intended. It was intended to be closed when not in use and the engine became 'unsafe to operate in the service to which the same was put' only because of the negligent act of leaving the trapdoor open when it ought to have been closed. The Boiler Inspection Act (45 U.S.C.A. § 22 et seq.), like the Safety Appliance Act (45 U.S.C.A. § 1 et seq.), was not intended to cover the negligent act of an employee in the use or misuse of an appliance safe and proper in itself and free from mechanical defects."

The cases under the Boiler Inspection Act held that:

(a) There was no liability when injury was caused by objects or obstructions placed by unknown persons. See Reeves v....