Gerow v. Seaboard Air Line Ry.
| Citation | 128 S.E. 345,189 N.C. 813 |
| Decision Date | 03 June 1925 |
| Docket Number | 260. |
| Parties | GEROW v. SEABOARD AIR LINE RY. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wake County; Daniels, Judge.
Action by Mrs. Louise E. Gerow, administratrix of the estate of Herbert W. Gerow, against the Seaboard Air Line Railway. Judgment for plaintiff, and defendant appeals. No error.
Not error to withdraw incompetent evidence previously admitted.
See also, 188 N.C. 76, 123 S.E. 473.
Civil action to recover damages for an alleged negligent injury caused by defendant's wrongful act and resulting in the death of plaintiff's intestate. Upon denial of liability and issues joined, the jury returned the following verdict:
"(1) Was the plaintiff's intestate, Herbert W. Gerow injured and killed by the negligence of the defendant, as alleged in the complaint? Answer: Yes.
(2) Did a violation of a federal statute, enacted for the safety of employees, contribute to the injury and death of the said Herbert W. Gerow? Answer: Yes.
(3) Did the plaintiff's intestate, Herbert W. Gerow, by his own negligence contribute to his injury and death, as alleged in the defendant's answer? Answer: ______.
(4) Did the plaintiff's intestate, Herbert W. Gerow, assume the risk of injury and death, as alleged in the defendant's answer? Answer: ______.
(5) What amount of damages, if any, is the plaintiff entitled to recover--
(a) For the pecuniary loss suffered by his widow? Answer $8,000.
(b) For the pecuniary loss suffered by James Gerow? Answer: $8,000.
(c) For the pecuniary loss suffered by Elizabeth Gerow? Answer: $8,000.
(6) Did the plaintiff's intestate, Herbert W. Gerow, endure conscious pain and suffering before his death as a result of the defendant's negligence, as alleged in the complaint? Answer: Yes.
(7) What amount of damages, if any, is the plaintiff entitled to recover for the conscious pain and suffering endured by the said Herbert W. Gerow? Answer: $2,250."
Judgment on the verdict for plaintiff. Defendant appeals, assigning errors.
Murray Allen, of Raleigh, for appellant.
Douglass & Douglass, R. N. Simms, and R. L. McMillan, all of Raleigh, for appellee.
This case was before us at a former term (188 N.C. 76, 123 S.E. 473), when a new trial was awarded for error in the exclusion of certain evidence. The facts were reported fully at that time, and we shall not undertake to repeat them here.
It was conceded on the hearing that the defendant is a common carrier by railroad, engaged in interstate commerce, and that plaintiff's intestate was employed by the defendant in such commerce as a locomotive engineer at the time of his injury and death. He was killed by a boiler explosion. The case, therefore, is one arising under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) and the federal Boiler Inspection Act (U. S. Comp. St.§ 8630 et seq.), and it has properly been tried under these acts. Cobia v. Railroad, 188 N.C. 487, 125 S.E. 18. It is governed by the federal law. Capps v. Railroad, 183 N.C. 185, 111 S.E. 533. Plaintiff's intestate, a man 34 years of age, left a widow, age 31, and two small children, a son 11 years of age, and a daughter 6 years of age, him surviving, all of whom were dependent upon the deceased for support and maintenance; and his administratrix, or personal representative, is prosecuting this suit on behalf of these persons, who fall in the first class of beneficiaries under the statute. Horton v. Railroad, 175 N.C. 472, 95 S.E. 883; Dooley v. Railroad, 163 N.C. 463, 79 S.E. 970, L. R. A. 1916E, 185.
On November 26, 1921, plaintiff's intestate was in charge of defendant's locomotive No. 409, drawing a freight train of cars, which left Raleigh, N. C., on that day about 7:30 p. m., going northward. After running a distance of about 18 miles, the boiler of said locomotive engine suddenly and violently exploded, fatally injuring plaintiff's intestate, and causing his death 25 minutes later. He endured excruciating pain and conscious suffering from the time of the explosion until his death. The sixth and seventh issues are addressed to this feature of the case. Cobia v. Railroad, 188 N.C. 494, 125 S.E. 18. Both the recovery and the amount awarded for the conscious pain and suffering of the decedent, before his injuries proved fatal, are supported by what was said in St. Louis & Iron Mt. Ry. v. Craft, 237 U.S. 648, 35 S.Ct. 704, 59 L.Ed. 1160.
The explosion of the boiler is alleged and admitted. It is likewise alleged and admitted that said locomotive engine was equipped with injectors, one on the right side and one on the left side of the boiler, which were designed and intended to be used in conveying water from the water tank to the boiler of the locomotive, and that said injectors were connected with the water tank by means of certain hose, known as tank hose, which contained strainers designed and intended to prevent straw, leaves, trash, and other objects from getting into the injectors, or either of them, from the supply tank.
There is allegation to the effect that it was necessary for said injectors to be in proper repair in order to supply a sufficient quantity of water to the boiler, and in order for either of said injectors properly to perform its function, it was essential that the tank hose and the strainer contained therein be and remain free and clear of all objects, such as straw, leaves, sediment, etc. It is also alleged, among other things, that the defendant failed to equip and provide the manhole or tank of said engine with a strainer so as to prevent the entry of trash and other objects into the tank and thence into the tank hose, thereby rendering the locomotive unsafe to operate in the service to which it was put.
In support of these allegations, the plaintiff offered evidence tending to show that the strainers in the tank hose had been clogged or covered with trash, bagging, and leaves to such an extent as to stop the flow of water from the tank to the boiler through the injectors, thus causing the explosion which resulted in the death of plaintiff's intestate. Plaintiff offered in evidence the following rule adopted for the inspection and testing of steam locomotives and tenders duly approved by orders of the Interstate Commerce Commission:
"153. (a) Feed Water Tanks.--Tanks shall be maintained free from leaks, and in safe and suitable condition for service. Suitable screens must be provided for tank wells or tank hose.
(b) Not less frequently than once each month, the interior of the tank shall be inspected, and cleaned if necessary.
(c) Top of tender behind fuel space shall be kept clean, and means provided to carry off waste water. Suitable covers shall be provided for filling holes."
That it was the duty of the defendant to have the boiler of said locomotive, and appurtenances thereof, in proper condition and safe to operate in the service to which it was put, is conceded. Section 2 of the federal Boiler Inspection Act is as follows:
"From and after the 1st day of July, nineteen hundred and eleven, it shall be unlawful for any common carrier, its officers or agents, subject to this act to use any locomotive engine propelled by steam power in moving interstate or foreign traffic unless the boiler of said locomotive and appurtenances thereof are in proper condition and safe to operate in the service to which the same is put, that the same may be employed in the active service of such carrier in moving traffic without unnecessary peril to life or limb, and all boilers shall be inspected from time to time in accordance with the provisions of this act, and be able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for." 36 Stat. at L. 913, c. 103 (U. S. Comp. St. § 8631).
By amendment of March 4, 1915, the provisions of the Boiler Inspection Act were extended to "the entire locomotive and tender and all parts and appurtenances thereof." 38 Stat. at L. 1192, c. 169 (U. S. Comp. St. § 8639a).
The Boiler Inspection Act was passed to promote the safety of employees, and it is to be read in connection with the federal Employers' Liability Act. The two are companion acts. Under the latter act, defendant is liable for any negligence chargeable to it, which caused or contributed to cause the death of plaintiff's intestate (section 1 [U S. Comp. St. § 8657]); and he will not be held guilty of contributory negligence (section 3 [section 8659]), or to...
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