Larsen v. Northern Pac. Ry. Co.
| Decision Date | 22 June 1928 |
| Docket Number | No. 26544.,26544. |
| Citation | 175 Minn. 1,220 N.W. 159 |
| Parties | LARSEN v. NORTHERN PAC. RY. CO. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Clay County; Carroll A. Nye, Judge.
Action by Arthur A. Larsen against the Northern Pacific Railway Company. Verdict for plaintiff. From an order denying its motion for judgment non obstante or a new trial, defendant appeals. Reversed.
B. W. Scandrett and Frederic D. McCarthy, both of St. Paul, for appellant.
Wm. Russell, of Moorhead, and Davis & Michel, of Minneapolis, for respondent.
Defendant appeals from the order denying its motion for judgment non obstante or a new trial.
Plaintiff, in the employ of defendant as a fireman on one of its locomotives used in interstate traffic, claims to have suffered personal injuries on November 26, 1925, at Livingston, Mont. In this action to recover damages he had a verdict. The complaint alleges that as such fireman it was plaintiff's duty that day to do the necessary work in preparing said locomotive to haul a passenger train out of Livingston; that it was defendant's duty to furnish him a reasonably safe place wherein to do his work; that it negligently furnished this locomotive in defective and unsafe condition, in that it "carelessly, recklessly, and unlawfully allowed and permitted a certain part and contrivance thereon, known as a spindle on a valve, or gauge cock of the water glass attachment, to be and remain in a broken, defective, insecure, and dangerous condition and ill state of repair; that said spindle is a contrivance attached to the water glass of said locomotive for the purpose of gauging or testing the amount of water in the boiler of said locomotive." It is then alleged that, as plaintiff was shoveling coal into the firebox, "said spindle, because of its defective, worn, and insecure condition and ill state of repair, was caused to and did blow out, fly into the air, and strike plaintiff in the back of the head," inflicting upon him the injuries set forth, and charges that such injuries "were caused and contributed to by reason of the violation by defendant of the laws of the United States requiring defendant to equip their locomotives with safe and suitable appurtenances."
The locomotive in question had come out of the roundhouse and stood about 120 feet from the turntable ready to assist an interstate passenger train over the hill a few miles to the west of Livingston. It carried about 180 pounds of steam. Plaintiff and the engineer had been in charge for about 10 minutes; the engineer being engaged in oiling towards the front of the locomotive and plaintiff in shoveling coal into the fire box, when, as he claims, the spindle of the lower water glass cock blew out, striking his head with such force that he does not know how he got out of the cab, but does remember seeing the spindle roll on the floor. His fellow servants, attracted by a pop as of a breaking water glass and the accompanying noise of escaping steam, approached the cab and found him lying outstretched on the ground below the gangway, apparently unconscious. A more particular description of the spindle, its function, and how held may be advisable. The spindle itself is a rod, of half-inch diameter and 5 inches long, made of the usual brass or bronze alloy found in the equipment of locomotives. It fits snugly into a hollow tube, called the water glass cock. This tube is screwed into the boiler 5 feet and 4 inches above the floor of the cab and 7 inches to the left of the door of the fire box. Several inches higher a similar cock is screwed into the boiler. Between the two is placed the water glass sunk into the cocks and tightly fitted. By means of the spindle in each cock, the flow of steam and water may be let into the glass or shut off therefrom. It is a safety device by which those in charge of the locomotive may always learn of the stage of water in the boiler. The orifice or hole in the cock is only the size of a lead pencil from where it enters the boiler until just before it reaches the opening to the water glass, and from there on to the outer end of the cock the diameter of the orifice is one-half inch, into which the spindle fits. A disc or handle of three-inch diameter is affixed to the outer end of the spindle. Next to the handle, and for about an inch in length, there are raised threads on the spindle to screw into a nut having corresponding threads which is screwed onto the end of the cock. There were 18 threads on this spindle. The usual number of threads is from 14 to 18. The nut is long, with the end towards the boiler enlarged so as to receive the threads on the end of the hollow tube or cock which is nearly an inch diameter. The enlarged part of the nut is threaded to fit the threads upon the end of the cock, and is of sufficient depth to permit packing gaskets to be inserted so that when the nut is screwed onto the cock and the spindle screwed into the nut by screwing down the nut on the cock, the packing tends to prevent steam from reaching the threads of the spindle. The inner end of the spindle is beveled, so that, when fully turned in, the orifice to the boiler is completely closed, preventing steam or water passing from the boiler into the water glass or gauge. The normal position for the spindle, when fire is maintained under the boiler, is turned out from being completely closed from 1½ to 3 turns. That means, from 1½ to 3 threads of the spindle are out of the nut and not engaged with the grooves or threads of the latter.
Defendant insists that plaintiff staged the so-called accident; that it was impossible for him to have got out through the narrow gangway of the cab, if struck so that he became unconscious; that, as he stood with the left side towards the spindle, it could not strike the right side of his head, where he claims he was struck; that the outstretched position of his body when found, glasses in place and unbroken, and his clothing dry, indicate that, in some way, he managed to unscrew the spindle and get out of the cab without being touched by the escaping steam and water; and that he has simulated injuries ever since. As there is to be a new trial, we refrain from discussing the evidence relating to these matters. It is enough to say that the testimony in respect thereto was in conflict and properly raised jury questions. But a new trial was asked on the ground that the verdict was not sustained by the evidence and was contrary to law. This the trial court denied, and the ruling is assigned as error here.
The negligence charged against defendant was predicated upon the violation of the Federal Boiler Inspection Act, approved February 17, 1911, 36 Stat. 913, amended March 4, 1915, 38 Stat. 1192 (45 USCA §§ 22-34; Comp. St. § 8630 et seq.), in that the spindle was an unsafe part or appurtenance upon the locomotive. The jury were instructed as to its application thus:
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