Haynes' Admrs. v. C., N. O. & T. P. R. R. Co.

• Decision Date: 02 November 1911
• Citation: 145 Ky. 209
• Court: Kentucky Court of Appeals
• Parties: Haynes' Admrs. v. Cincinnati, New Orleans & Texas Pacific Railroad Company, et al.

145 Ky. 209

Haynes' Admrs. v. Cincinnati, New Orleans & Texas Pacific Railroad Company, et al.

Court of Appeals of Kentucky.

Decided November 2, 1911.

Appeal from Pulaski Circuit Court.

H. C. FAULKNER & SONS, SHARP, BETHURUM & COOPER for appellants.

O. H. WADDLE & SON for appellee.

OPINION OF THE COURT BY JUDGE CARROLL — Affirming.

This action was brought to recover damages for the death of E. L. Haynes, a fireman on appellee's railway and who was killed in the State of Tennessee. The company, and William Hudson, the engineer in charge of the engine on which appellant was a fireman, were made defendants. The negligence upon which the action was grounded is stated in the petition as follows: that while Haynes was employed as a fireman —

"And in the line of his employment and duties as such, the boiler and engine exploded, and threw great quantities of hot steam, water and other matter upon his body, scalding and burning him so badly that he soon thereafter died from the effects thereof; and the said explosion of the boiler and engine resulted from and was immediately caused by serious and dangerous defects on and in the same, and that but for which defective and dangerous condition of the boiler and engine, and its attachments, the same would not have exploded, or the intestate received the injuries stated. They state that the dangerous and defective condition of the boiler and engine and its attachments were well known to the defendants, the Cincinnati, New Orleans & Texas Pacific Railway Company, and William Hudson, the engineer in charge of the engine and superior to Haynes in point of service, or could have been known to them by the exercise of ordinary care in time to have prevented the explosion; and that the dangerous and defective condition of the engine and boiler and attachments was unknown to the deceased, and could not by the exercise of ordinary care have been known to him in time to have prevented the injuries and death aforesaid. They state that the accident above set forth and described, and the death of their intestate, H. L. Haynes, was caused by the gross carelessness and negligence and wrongful acts of the defendants, and that their said negligence and carelessness was joint and concurrent."

In an amended petition the law of Tennessee setting out the circumstances under which damages may be recovered in actions like this was pleaded, and it was subsequently agreed —

"That under the laws of the State of Tennessee and in force at the time of the infliction of the injuries of plaintiffs' intestate referred to and complained of in the petition, and still in force, an engineman and fireman in charge of and operating a locomotive engine of a railroad company or corporation operating a railroad in said State, and while such engine is being operated therein, such engineman and fireman are fellow servants, and the railroad company or corporation so owning and operating said railway engine and railroad and in whose service the engineman and fireman are at the time engaged is not liable for any injury or death inflicted upon either said engineman or fireman by reason of any negligent or wrongful act upon the part of the other; and that if plaintiffs' intestate received the injuries complained of as a result of the negligent management and operation of the engine by the engineer, the defendant railway company is not liable therefor."

In due time and in proper form the railway company, a foreign corporation, filed its petition, accompanied by bond, and moved the court to transfer the case to the federal court, upon the ground stated in the removal petition that the joinder of the resident engineer was fraudulent and for the purpose of depriving the non-resident defendant of its right to have the action removed. This motion was overruled, and afterwards the defendants filed separate answers, traversing the averments of the petition and pleading contributory negligence. The railway company also pleaded that as under the laws of Tennessee the engineer and fireman were fellow servants, it was not liable if the injury to the fireman was caused by the negligence of the engineer.

Upon the conclusion of the evidence for plaintiff the court on motion of the engineer instructed the jury to find a verdict in his favor. Immediately upon this motion being sustained, counsel for the railway company again offered to file the petition and bond for the removal that had been theretofore filed and made a part of the record, and moved the court to enter an order removing the case to the Circuit Court of the United States for the Eastern District of Kentucky, and this motion over the objection of counsel for the plaintiffs was sustained.

This appeal is prosecuted from the order of the court directing the jury to find a verdict in favor of Hudson, the engineer, and from the order removing the action against the railway company to the United States Circuit Court.

The accident happened in this way — the engine on which Haynes was firing was the second engine in a double-header freight train going south from Somerset. The train left Somerset at 9:30 in the morning, and a little after twelve o'clock that night, and while the train was running, the crown-sheet blew out and the escaping steam and water scalded the fireman so badly that he died soon afterwards. The crown-sheet is a large sheet of iron that covers the fire box of the engine, the top of it being covered with hot or boiling water. In other words, on the lower side of the crown-sheet is the fire, and on top of the crown-sheet is the water. The blowing out of the crown-sheet, as it is called, may be caused by not having enough water in the boiler, or by having too much steam. If there is not enough water in the boiler, the fire will burn the crown-sheet, and thus let the water and steam on top of it down in the fire box; and if there is too much steam, it will crack or break the crown-sheet, producing the same effect. At the moment of the accident, the fireman opened the fire box door, and just as he opened it the crown-sheet burst and the hot steam and water poured out of the door. The engineer testified that he was informed that the crown-sheet of this engine had been burned and injured some two or three months before this trip, and that it was a rule of the company that engineers should go to the board and see the engine that was marked for them to take out, and then go and get the engine ready, but that he did not remember whether the fact that he had heard that the crown-sheet had been burned before that was in his mind or not. That, as directed by the orders, he got the engine ready and started out with it. He said that he could not see the steam gauge on his side of the engine, as while he was on the trip, one of the window panes fell out of the cab window on his side and the wind blowing in prevented him from having any light that would enable him to see the steam gauge on his side, and that just a moment before the accident he went to the fireman's side to get a drink of water, and as he came back to his side he looked at the steam gauge on the fireman's side, and observing that it registered 220 pounds, said to the fireman, "You are carrying too much steam in the boiler." Thereupon, the fireman opened the fire box door and the explosion occurred. That there were two safety valves on the engine, both of them adjusted at 180 pounds, and both were blowing off when he told the fireman he was carrying too much steam. That, while under the rules the engineer was in charge of the engine, yet it was the duty of the fireman to keep steam up, and the duty of both of them to see that a sufficient quantity of water was in the boiler and not too much steam. That neither the fireman nor the engineer had anything to do with the arrangement of the safety valves. That even with a properly equipped steam gauge adjusted to let off steam at 180 pounds, the steam may go higher if the fire is kept up. That the boiler was full of water. That in a good many engines there was a soft metal plug in the crown-sheet, put there so that if the crown-sheet got too hot this plug would melt out and thereby prevent an explosion, but that modern engines were built without these plugs. He said that the engine was fired up when delivered to him, but that it was his duty to inspect the crown-sheet and that he did so before starting. It is further shown by the engineer that the company's rules required the boilers of the engines to be washed out every twelve days, but that he did not know whether this boiler had been washed regularly or not. He said that he made a careful examination of the engine before starting from Somerset, and found everything in good condition, that there were no defects in the engine that he knew of, and that they had no trouble until the explosion of the crown-sheet occurred.

The road foreman of engines, whose duty it was to inspect engines, was introduced as a witness for the plaintiff and testified in substance that a month or so before this accident the crown-sheet on this engine had been burned, but that it was repaired and in good condition when it went out on this trip.

Neil Silvers, who had formerly been an engineer on this road, was introduced as a witness and said that if the crown-sheet of this engine had been burned out and repaired, it would not be as substantial as it was before.

In short, the evidence showed this state of facts: That the company directs the engineer what engine to take out, and it is the duty of the engineer to inspect the engine and see that it is equipped with all the necessary implements and machinery and in good condition. That Hudson, the engineer, did this before starting out with this engine, and so far as he knew or could tell the engine was in good condition when he left Somerset with it. That there were two steam gauges on this engine, one on the engineer's side and one on the fireman's side, and it was the duty...