Fredericks v. Erie R. Co.
| Decision Date | 09 December 1929 |
| Docket Number | No. 52.,52. |
| Parties | FREDERICKS v. ERIE R. CO. |
| Court | U.S. Court of Appeals — Second Circuit |
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Stanchfield, Collin, Lovell & Sayles and Halsey Sayles, all of Elmira, N. Y., for appellant.
Mortimer L. Sullivan, of Elmira, N. Y., for appellee.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
CHASE, Circuit Judge (after stating the facts as above).
In view of the evidence, we must assume that the location of the drain cock was safe and proper. Baltimore & Ohio Railroad Company v. Groeger, 266 U. S. 521, 45 S. Ct. 169, 69 L. Ed. 419.
Being placed there to be closed by hand, however, it was the duty of the defendant to see that it was fitted to the engine and maintained in such a way that the application of manual force by an employee, whose duty it was to close it, would not pull it loose in the attempt to do his work. It was to be expected that the valve in a drain cock from which water dripped in cold weather might freeze and stick, and it was also to be expected that an employee, trying to close it under such conditions, would pull as hard as he thought necessary within the limit of his strength. After trying to close it with one hand, it was perfectly natural for the plaintiff to use both, when, as here, the valve and fitting was so constructed that he could use both hands. It is idle for the defendant, after employing the plaintiff for this work, to try to excuse itself for the condition of the fitting by saying that its servant was too strong and heavy for the job it set him to do.
Common knowledge is sufficient to establish the fact that a pet cock, for the use to which this one was put, can easily be made, fitted, and maintained in such a way that, if the valve in it cannot be closed by hand, neither the drain cock nor fitting will be broken loose by an attempt at manual closing. To have such a drain cock fitted to the engine in a way that the use of both hands was invited, required it to be put there, so that it would withstand a two-hand pull in order to comply with the Boiler Inspection Act as amended (45 USCA § 22 et seq.), to require the appurtenances of the locomotive to be in proper condition and safe to operate. St. Louis, Iron Mountain & S. R. Co. v. Taylor, 210 U. S. 294, 28 S. Ct. 616, 52 L. Ed. 1061. And for injuries due to defendant's failure to comply with this law the plaintiff may recover, without showing the defendant to have been negligent. Texas & Pacific Railroad Company v. Rigsby, 241 U. S. 33, 36 S. Ct. 482, 60 L. Ed. 874; Wabash R. Co. v. United...
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