Flack v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 16 July 1920
• Docket Number: No. 21203.,21203.
• Citation: 285 Mo. 28,224 S.W. 415
• Parties: FLACK v. ATCHISON, T. & S. F. RY. CO.
• Court: Missouri Supreme Court

224 S.W. 415

285 Mo. 28

FLACK v. ATCHISON, T. & S. F. RY. CO.

No. 21203.

Supreme Court of Missouri, Division No. 2.

July 16, 1920.

Motion for Rehearing Denied September 15, 1920.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

Action by Mary Flack, as administratrix of the estate of S. C. Flack, deceased, against the Atchison, Topeka & Santa Fe Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

This is a suit in damages on the part of Mary Flack, administratrix of the estate of S. C. Flack, deceased, against the Atchison, Topeka & Santa NO Railway Company. The suit is brought under the provisions of the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). After formal allegations, the plaintiff alleges:

"That about 5:45 a. m., September 1, 1915, decedent's attention was called by one of defendant's employés to the fact that steam was leaking from around a washout plug on the boiler of an engine which was being put in readiness for use; that when an attempt was made to tighten said washout plug, the same blew out, and decedent was covered by steam and hot water issuing from said boiler, burning and scalding decedent to such an extent that as a result thereof he died within a few hours thereafter. * * * Plaintiff alleges that the defendant, its agents, servants, and employés, were careless and negligent in the following particulars, to wit: That the defendant's agents, servants, and employés, other than decedent, negligently and carelessly inserted the washout plug in such a manner as to cause the said steam and hot water to leak out around the same and blow out as aforesaid, and negligently and carelessly failed and omitted to inspect said washout plug when same was put in place, and to see that the same fitted properly and was tight and would not leak; and that, as a direct result of said negligence and careless acts and omissions on the part of defendants, its servants and agents and employés, said water plug blew out and decedent received his mortal injuries."

Further allegations are to the effect that the locomotive in question was designed for use in interstate commerce, and that the plaintiff was the wife of the deceased; that he left five children, all of tender years, and that decedent at the time of his death wag 38 years of age, and earning $130 per month.

The answer contained a general denial, a plea that the death of the decedent was caused by his own negligence, and the following paragraph:

"Further answering said first count of said petition, defendant states that at the time and place when deceased, S. C. Flack, was employed on or about September 1, 1915, there was in force and effect a rule of the defendant company governing and controlling the actions of said S. C. Flack, deceased, as follows: `(17) In case washout plugs are found to be loose after pressure is on the boiler, steam pressure must be reduced until there is no danger of plug blowing out while attempting to tighten it.' That S. C. Flack had full notice and knowledge of said rule, but in violation of same at the time and place mentioned in plaintiff's petition, negligently failed to reduce the steam pressure upon the boiler of the engine in question and by reason thereof said plug blew out, causing the death of deceased, so that by reason of said negligence in the violation of said rule, plaintiff is not entitled to recover."

The answer further contained, in paragraph 6, allegations concerning other instructions alleged to have been given in accordance with the rule above pleaded, and in paragraph 7 a plea of assumption of risk. The reply was a general denial of the allegations of the answer, coupled with a further plea to the effect that rule 17 above mentioned had been waived by defendant, and that the customary and usual method of the defendant in reference to the matters referred to in the rule was to disregard rather than to enforce the rule. At the close of the evidence, the plaintiff elected to stand on the count from which we have quoted the salient portions.

The evidence for the plaintiff in substance showed the appointment and qualification of the plaintiff as administratrix; the death of the decedent; that he had been for about 8 years immediately prior to his death in the employ of defendant, at Argentine, Kan.; that the number of the children was as stated in the petition; that the deceased was 37 years of age, and was earning $125 per month.

E. W. Martin, for the plaintiff, testified that the deceased was a boiler maker, and was in charge of a gang of men whose duty it was to wash out the engine boilers, and to make such repairs as could be made in the yards, without taking the engine to the shops, to overhaul the engines and prepare them for service on the road, and steam them up and get them ready to go out; that witness was a boiler maker and a member of the crew of which Flack was foreman; that on the morning of September 1, 1915, between 4 and 5 o'clock, engine No. 1489 was being prepared to go on an interstate trip. The engine was then about ready to leave the roundhouse in Argentine, Kan., preparatory to crossing to Kansas City, Mo., where it would be attached to the train and proceed thence to points in Kansas and Oklahoma. There was about 190 to 200 pounds of steam up in the boiler immediately before the accident occurred. In various places about the boiler there are "washout plugs." These plugs are devices which are built into the boiler for the purpose of being used in cleansing it, and consist of copper bolts about 3 3/8 inches in diameter, which are screwed into the body of the boiler and which, when in place, form a part of the body. The end of the plug penetrates to the end of the plug, as well as to the other parts of the inside of the boiler. It was the duty of the decedent to inspect the engines immediately before they left the roundhouse, and to ascertain whether or not they were in proper condition to be sent out. On the morning of the day on which the accident occurred, the deceased sent a boiler maker helper, one Frank Creten, to inspect this and other engines, and Creten reported that a washout plug underneath and on the left-hand side of the boiler of the engine in question was permitting steam to escape. Upon learning that this plug was leaking, Flack called this witness, Martin, to assist in stopping the leak. Martin looked at the leaking plug, and knew that the engine was carrying a pressure of about 200 pounds of steam. Martin further testified that the plug had been put in improperly, and that he thought it should be tightened up. He examined the washout plug while Mr. Flack was standing near by. From the fact that the steam was leaking around the plug, he came to the conclusion that the plug was cross-threaded, that is to say, the threads were cut, or that it was not screwed in completely. The following conversation then occurred between Martin and Flack:

"Q. What did you say to Flack, if anything, about the plug or about doing the work? A. Well, I told him I would not tighten the plug up; to go get the boiler washer and his helper to tighten this plug up.

"Q. And what did you say to him, if anything, about the danger of the work? A. I told him that there was danger to tighten this plug up under the condition of the boiler, and he said to me,. he said, `I had instructions from the company to do this work this way,' and I said, `Blow this engine down,' and he says, `I have instructions to tighten these with the steam on.'"

Martin refused to assist in the work, but sent his helper, one Caldwell, and two boiler washers, both foreigners, were also called. This witness also testified that if a washout plug was not properly inserted, it was liable to blow out, and would not hold the pressure; that he had never seen a boiler "blown down to have the plug tightened on it," nor known of that being done (blowing down a boiler consists in permitting the steam to escape by devices intended for that purpose); that he had been working about the roundhouse for about seven months, and had seen leaking plugs tightened up without having the steam pressure reduced.

On cross-examination the witness stated that there was about 200 pounds of steam in the boiler at that time; that he was a boiler maker working under Mr. Flack; that one Lyle, who was Flack's immediate superior, was in the roundhouse that night; that Roy Current was in charge of the roundhouse, and that Flack was in charge of the boiler makers at night; that Caldwell, another witness for the plaintiff, was Martin's helper; that the duties of the witness were to discover and repair leaks on engines, to put in flues, build any part of a boiler or patch it, or do anything pertaining to the boiler itself. On the morning in question, he had been at work upon another engine about 20 feet away. Electric lights were burning in the roundhouse, and the workmen had the assistance of an electric light extension in working about that engine, and some torchlights as well. When Martin told Flack of the existence of the leaking washout plug, Flack in structed him to get a wrench and tighten it up, and then the following occurred:

"Q. What did you tell him? A. I told him to get the boiler washers to tighten it that put it in.

"Q. Did you tell him anything else? A. Yes, sir; I told him it was dangerous to tighten that plug up.

"Q. Just go ahead and tell anything else that you told him. A. I told him then I would get a pipe to put on this pipe for the boiler washers. He started after the boiler washers, I guess. I went over and got a plug pipe from 2118, and when I got back the boiler washers were pulling down on the plug.

"Q. And where was Mr. Flack? A. Right between the boiler and the fire box.

"Q. That was on the left hand side? A. Yes, sir.

"Q. And these men had the wrench on this plug that you had looked at, had they? A. They had the wrench on the plug then.

"Q. And were pushing...