Great Northern Ry. Co. v. Johnson
| Decision Date | 24 July 1913 |
| Docket Number | 3,822. |
| Citation | 207 F. 521 |
| Parties | GREAT NORTHERN RY. CO. v. JOHNSON. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Where experts could not anticipate danger from the operation of replacing a flue in a locomotive boiler, arising from pieces flying off from the flue while the end thereof was being expanded to tighten it in the flue sheet, an employé whose eyes were injured by one of such flying pieces assumed the risk.
C. J Murphy, of Grand Forks, N.D. (Fred S. Duggan, of Grand Forks N.D., on the brief), for plaintiff in error.
Seth W Richardson, of Fargo, N.D. (William H. Barnett, of Fargo N.D., on the brief), for defendant in error.
Before SANBORN and CARLAND, Circuit Judges, and WILLARD, District judge.
On the 7th day of January, 1908, Johnson was in the employ of the railway company as a boiler maker at Minot, N.D. While employed in making tight certain flues of a locomotive boiler, a piece of a flue upon which he was working, V-shaped, and about the size of a dime, broke from the flue and struck him in the eye. He brought suit against the railway company to recover damages on account of his injury, alleging that the company was guilty of negligence in furnishing him a flue that was old, worthless, and worn out, and which was of such poor material by reason of its long use that it could not withstand the force used in the work necessary to be done upon it; that the railway company knew of this defective condition of the flue, or might have known it by the exercise of ordinary care. Upon the trial of the action a verdict was rendered in his favor, and, judgment having been entered thereon, the railway company has removed the case here, assigning as error the ruling of the court in refusing to direct a verdict in its favor. The case was here at a former term of this court. 176 F. 328, 99 C.C.A. 618. From the record as then presented, we were of the opinion that there was no evidence sufficient to go to the jury that the flue from which the piece was broken was old, worthless, worn out, and defective, as alleged in the complaint. It is claimed that this defect in the evidence was supplied at the second trial. It is doubtful whether this is so, but we pass that question for the purpose of determining whether there was sufficent evidence to warrant the jury in finding that the railway company was guilty of negligence.
In order that this question may be better understood, a more detailed statement of the facts will be made. The locomotive boiler on which Johnson was employed at the time of his injury had 202 flues. These flues extended from the fire box end to the smokestack or front end of the locomotive. At the smokestack or front end these flues extended through holes, in what is called the flue sheet, one-half to three-quarters of an inch. In order to make the space around the flue, where it passes through the flue sheet, water tight, the flue is expanded. One of the ways in which the flue is expanded is to drive a round iron pin, tapered at one end, six or seven inches long, into the end of the flue where it extends through the flue sheet. At the time Johnson was injured he was in the front end of the locomotive boiler, engaged in expanding all flues that showed any evidence of leakage; that is, leaking water from around the flues at the point where they pass through the flue sheet. After he had inserted the pin into the flue, he thus describes the manner of his injury:
'We had some oil there that we usually use to start it; that-- I don't remember whether we had any at that time; we were in a hurry on that job, and I started to push it in, and I had a small hammer there to pound it in, and I just started to pound it, and a piece flew off the flue.'
Flues are of malleable iron or steel, so far as the record shows so that they may be worked. Except as the water may affect that portion of the flue between the fire box and the flue sheet, flues may last for two or more years without repair. The part of the flue which extends into the fire box becomes defective by reason of the action of fire, and when this occurs the flue is taken out and retipped. The portion of the flue which extends...
To continue reading
Request your trial
-
Peterson v. Fargo-Moorhead Street Railway Company
... ... inference can be drawn. Severtson v. Northern P. R ... Co. 32 N.D. 200, 155 N.W. 11; Cameron v. Great ... Northern R. Co. 8 N.D. 124, 77 ... Great Northern R. Co. 25 N.D. 572, 142 N.W. 165; ... Great Northern R. Co. v. Johnson, 125 C. C. A. 123, ... 207 F. 521; O'Neill v. Chicago, R. I. & P. R ... Co. 66 Neb. 638, 60 ... ...
-
Mobile & O. R. Co. v. Clay
... ... Western Steel Car & Foundry Co. (Ala., 1911), 56 So ... 995, 40 L.R.A. (N.S.) 890; Great Northern Railway Company ... v. Johnson, 207 F. 521; Potter v. Richardson & ... Robbins Co ... ...
-
LE Whitham Constr. Co. v. Remer
...Storage Battery Co. v. De Lay, 8 Cir., 87 F.2d 726, 731; Chicago & N. W. Ry. Co. v. Payne, 8 Cir., 8 F.2d 332, 334; Great Northern Ry. Co. v. Johnson, 8 Cir., 207 F. 521, 524; H. D. Williams Cooperage Co. v. Headrick, 8 Cir., 159 F. 680, 682; Aqua System v. Kodakoski, 5 Cir., 88 F.2d 395, 3......
-
Korte v. New York, NH & HR Co.
...v. New York, N. H. & H. R. Co., 1 Cir., 261 F. 667; Schilling v. Delaware & H. R. Corporation, 2 Cir., 114 F.2d 69; Great Northern Ry. Co. v. Johnson, 8 Cir., 207 F. 521. To hold that the letters, especially the one from one doctor to the other, were admissible as records stamped with the l......